Withers and Russell (No 2)

[2018] FamCA 88

FAMILY COURT OF AUSTRALIA

WITHERS & RUSSELL (NO. 2) [2018] FamCA 88

FAMILY LAW – ORDERS – Contravention – Where the mother failed to comply with Orders made on 23 November 2017 – Where the mother filed a Notice of Appeal against and an application to stay those Orders – Where in breach of Order 1 the mother has refused to enter into the good behaviour bond – Where Order 2 attempted to eradicate uncertainty in the underlying parenting orders and prevent further disputes between the parties – Where the mother’s application to stay the operation of Orders 1 and 2 is dismissed – Ordered that, pending the mother’s compliance with Order 1 by her entry into the good behaviour bond, the underlying parenting orders providing for the children to spend time with the mother are suspended

Crimes Act 1914 (Cth) s 4AA
Family Law Act 1975 (Cth) ss 70NBA, 70NEB, 70NECA

Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681

APPLICANT: Mr Withers

RESPONDENT: Ms Russell

FILE NUMBER: CAC 223 of 2015

DATE DELIVERED: 8 February 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 8 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

1. Pending the mother’s compliance with Order 1 made on 23 November 2017, Orders 13, 19, 20, 21 and 22 made on 20 September 2016 are suspended.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Withers & Russell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  CAC 223 of 2015

Mr Withers

Applicant

And

Ms Russell

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 23 November 2017, I found the mother contravened a parenting order without reasonable excuse and ordered that she enter into a good behaviour bond within 28 days. It was later drawn to my attention she had failed to enter into the bond, either within the time allowed or at all. As a consequence, the proceedings were re-listed before me on 29 January 2018 to determine what should be done about it. 

2. On that date, the mother informed the Court she intended to appeal against the orders made on 23 November 2017, and further, she would seek a stay of the orders pending determination of her appeal. For reasons which need not be presently canvassed, the mother’s appeal had not been formally filed on 29 January 2018 and so the proceedings before me were adjourned for a short period (until today, 8 February 2018) to enable the Notice of Appeal to be filed.  It has since been formally accepted for filing and was back-dated to 21 December 2017. 

3. Consequently, two issues require attention today: First, should the appealed orders of 23 November 2018 be stayed pending the appeal? Second, if not, what should be done about the mother’s past failure and current disinclination to enter into the good behaviour bond? 

Adjournment

1. The mother sought an adjournment of the hearing before it began, but it was refused. The two reasons given for the adjournment were her “health concerns” and her alleged inability to represent herself. 

2. As to the mother’s health, she placed no evidence before me of any medical condition which precluded her from participating in the hearing. She was linked to the Court by telephone from her home in the United States of America, as has often happened in the past. Her subsequent participation in the short hearing, which lasted about 20 minutes, revealed no impairment to her capacity. She participated in the discourse ably and sensibly.

3. The mother’s contention she was “incapable of representing” herself was a bare and unmeritorious submission. On each of the numerous occasions she has appeared in hearings before me over the last 12 months she was self-represented. She is an intelligent and able person. She appears to have confidence in her own ability. She has successfully defended the father’s applications on former occasions. She knew this hearing was pending. She did not explain what efforts she had made to secure legal representation for it. She did not say what efforts she would make to get legal representation if she was granted the reprieve of an adjournment. An adjournment was pointless unless it was for a purpose, and the mother failed to convince there was a purpose. 

Applications and evidence

1. The mother moved on her Application in a Case (Stay) dated 20 December 2017, in support of which she relied upon the document entitled “Affidavit (in support of stay application)” which she swore in the United States of America on 20 December 2017. 

2. It is still not clear to me whether either of those two documents have been successfully filed, but I accept the mother’s contention she has endeavoured to file them through the Canberra registry of this Court. Regardless, the father conceded he had been provided with copies of those two documents and he had read them. As a consequence, leave was granted to the mother to rely upon them, irrespective of whether they have been formally filed. 

Legal principles concerning stay of orders

1. The discretion to stay the operation of orders should only be exercised where circumstances exist which justified departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation, pending the determination of any appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (see Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220 at 222-223). The court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 685). Those common law principles apply equally to judgments delivered in this jurisdiction.

Stay of orders?

1. The mother’s appeal is against two orders made by me on 23 November 2017. 

2. Order 1 required her to enter into a good behaviour bond to sanction her proven contravention of a parenting order.

3. Order 2 made an amendment to rectify the underlying parenting orders (made by Watts J on 20 September 2016) in an attempt to prevent further disputes between the parties about implementation of the orders. 

4. Order 2 was made pursuant to the power conferred by s 70NBA of the Family Law Act 1975 (Cth) (“the Act”). It was a procedural order about the timely exchange of information between the parties. None of the mother’s grounds of appeal appear directed to the efficacy of Order 2 and she made no submissions today which bore upon the validity of Order 2. In such circumstances, there are no grounds to stay the operation of Order 2. Indeed, Order 2 was made as much for the mother’s benefit as it was for the father’s, for the reasons I gave when pronouncing judgment on 23 November 2017.

5. That leaves Order 1 for consideration, in relation to which order the mother’s grounds of appeal contend:

   (a)Sufficient weight was not given to the children’s best interests and her medical conditions (grounds 1, 2 and 4); 

   (b)      I misconceived my judicial function (ground 3); 

   (c)I failed to follow the legislative pathway and incorrectly identified relevant legal principles (grounds 3 and 6);

   (d)I ignored or did not give proper weight to the evidence (ground 5); and

   (e)I erred in determining the contravention was the mother’s second contravention (ground 7).

6. Although the provisions of the Act governing contraventions (Division 13A) fall under Part VII, the proceedings do not relate to parenting orders (s 64B). While provisions of the Act which relate to the children’s bests interests might influence the sanction imposed upon a parent for contravention of a parenting order, those provisions do not influence the antecedent decision about whether or not the parent contravened the order without reasonable excuse. If the mother is contending on appeal some failure by me to address all relevant considerations which should have influenced the sanction imposed upon her for the breach, that is not a submission she made at the time of trial. Both parties were then self-represented and both were given the opportunity to make submissions about the appropriate sanction. Neither said anything useful. I recorded in my reasons given at the time (at [44]):

   …the parties provided little, if any, assistance settling upon the appropriate sanction…

7. The mother hardly has grounds to criticise the procedure adopted or the law applied at trial. I explained the procedure and relevant legal principles to her at the outset. She said she understood and she took no issue with the correctness of the explanation. I summarised the format of the hearing. I also cited the relevant provisions of the Act and the Family Law Rules 2004 (Cth). Against that background, I remain puzzled about how it is contended I misconceived my judicial function, did not follow the legislative pathway, or incorrectly identified relevant legal principles. Similarly, the bald assertion that I ignored or did not give proper weight to some aspect of the evidence remains unexplained.

8. Finally, it is contended I erred by concluding the contravention was the mother’s second. That fact must be beyond argument. Once before, on 27 April 2017, the mother was found to have contravened an order without reasonable excuse. No sanction was imposed upon her for that breach. The finding against her on 23 November 2017 was her second proven contravention. However, as was explained at the time, the two contraventions arose out of the same Application filed by the father on 27 February 2017 and so the mother’s second contravention was treated as a first for the purpose of her sanction. Sub-division E, rather than Sub-division F, of Division 13A was applied to determine the sanction. 

9. For those reasons, the prospects of the mother’s appeal do not appear strong. 

10. Aside from the perceived weakness of the appeal, the mother does not suffer any appreciable prejudice by the continued operation of the orders pending determination of her appeal against them. The appealed orders only seek to streamline the underlying parenting orders and ensure her future diligent compliance with them. If she objects to such desirable objectives, she cannot be taken seriously. 

11. The mother submitted the orders made by Watts J in September 2016 are ambiguous and uncertain in some respects and so she fears the father will look for reasons to prosecute her for more contraventions. She seemed not to appreciate the irony of that submission, given Order 2 made on 23 November 2017 (which she seeks to stay) was made to introduce clarity to the primary orders. 

12. The risk of the father unreasonably looking for more opportunities to prosecute her for further contraventions is neither enhanced nor abated by anything I now do. Presumably the mother will deny any more contraventions alleged against her and her defences of any further contravention applications will either stand or fall on the evidence adduced.

13. The mother’s application to stay the operation of Orders 1 and 2 made on 23 November 2017 is therefore dismissed. 

Enforcement of orders

1. The Court file reveals that, acting upon my orders made on 23 November 2017, the Registrar contacted the mother by email on several occasions to try and facilitate her entry into the good behaviour bond. The telephone meetings set up by the Registrar for the mother on the following dates were not attended by her, without explanation:

   (a)29 November 2017;

   (b)6 December 2017; and

   (c)20 December 2017

2. The mother was notified of those telephone meetings via the same email address she has used in the past. She acted on emails sent by the Court to the same email address notifying her of Court events on the following dates, which she did attend by telephone from the USA:

   (a)23 November 2017;

   (b)29 January 2018; and

   (c)today.

3. Until she interrupted the delivery of these reasons, the mother did not assert her unawareness of the meetings arranged by the Registrar, her failures to attend which were the catalyst for the resumption of these proceedings. Even if she did not receive the emails, as she belatedly said, it made no difference because she declined to enter the bond as ordered. If she refused to commit to her entry into the bond when discussing the matter in Court, it is likely she would have similarly refused to commit to entry into the bond had she attended the earlier Registrar’s meetings. On 29 January 2018, the mother at least implied she refused to enter into the good behaviour bond because her appeal against the order was pending. She again implied her refusal today. 

4. The mother’s default is her failure or refusal to enter into the good behaviour bond as ordered; not her failure to comply with the good behaviour bond. For that reason, s 70NECA of the Act does not apply. Nonetheless, the mother’s obstinacy cannot be permitted to continue. To remedy the situation, two alternatives are open. Either:

   (a)A fine not exceeding 10 penalty units may be imposed upon the mother (s 70NEB(1)(da)) and for that purpose a penalty unit is presently worth $210 (s 4AA of the Crimes Act 1914 (Cth)); or

   (b)I may make an order varying a primary order (ss 70NBA(1) and 70NBA(3)). 

5. The first option is undesirable because there is no evidence of the mother’s financial circumstances, which evidence is important to determine the amount of any fine and the time for its payment. The mother has at least implied her financial circumstances are tight. 

6. The less invasive option is to amend the underlying parenting orders by providing the children will not spend time with the mother until she enters into the good behaviour bond. Of course, there will no interruption to the time the children spend with the mother at all, so long as she enters the bond, which requires her good behaviour for six months thereafter. The mother did not persuasively explain why she would, in any way, be prejudiced by being well-behaved and complying with existing orders for the next six months. If she refuses to commit to such an obviously easy solution then it is indicative of further commotion between the parties over the children, which the Court should now attempt to prevent.

7. The proposed amendment to the primary parenting orders is not thwarted by or conditional upon consideration of factors prescribed by s 70NBA(2), because that provision only applies when Sub-division F applies to the subject contravention. In this instance, Sub-division E applies to the contravention. 

8. For those reasons an order will be made in the following terms.

   ORDERS DELIVERED

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 8 February 2018.

Associate: 

Date:  22 February 2018