Yates and Turner (No 3)

[2009] FamCA 887

FAMILY COURT OF AUSTRALIA

YATES & TURNER (NO. 3) [2009] FamCA 887

FAMILY LAW – ORDER – CONTRAVENTION – PENALTY – where the Court found the mother to have contravened an order without reasonable excuse – where serious disregard for the obligations under the order was not established – consideration of the Court’s powers to make orders with respect to the contravention under s 70NEB – whether an order should be made as to costs – no formal order by way of sanction – no order for costs for either party

Family Law Act 1975 (Cth) ss 70NCB, 70NEA, 70NEB, 70NFB, 117, 117AA, 117AB, 117AC & 118

Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341

APPLICANT: Mr Yates

RESPONDENT: MS Turner

FILE NUMBER: ADF 1176 of 2005

DATE DELIVERED: 2 September 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 2 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: n/a

COUNSEL FOR THE RESPONDENT: Ms Croydon

SOLICITOR FOR THE RESPONDENT: Croydons

Orders

1. No formal order by way of sanction.

2. No order for costs for either party in relation to the contraventions.

IT IS NOTED that publication of this judgment under the pseudonym Yates & Turner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1176 of 2005

MR YATES

Applicant

And

MS TURNER

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which now needs to have consideration given to the complicated provisions of Division 13A which is headed “Consequences of failure to comply with orders and other obligations that affect children”.  The order for the delivery-up of the child’s goods can be described as a parenting order and would therefore be an order that affects the child.  It therefore comes within the Division 13A. 

2. The provisions set out in Division 13A are divided into certain subdivisions. 

3. The first deals with the question of how one determines contraventions and provides for those matters which I have already dealt with in my judgment. 

4. Subdivision E deals with “Contravention without reasonable excuse (less serious contravention)”. 

5. The contravention which I found the mother committed without reasonable excuse is the contravention which relates to the delivery up of the child’s goods. That falls within the provisions of section 70NEA and therefore the Court has to consider the sanctions which are available under that subdivision. In this case I am convinced that it is not a matter where the Court should consider there has been serious disregard for the obligations.

6. In my judgment I have set out the mother’s evidence.  Whilst I found that she had contravened the order without reasonable excuse the factors contained do not establish the serious disregard. 

7. The powers of the Court are therefore set out in section 70NEB. The first option is that the person who committed the current contravention attend a post separation parenting program.

8. I have taken into account in relation to the post separation parenting program the fact that litigation has been on foot in relation to children’s issues in this Court for years.  There have been various interventions and in particular, family reports prepared. 

9. I have also taken into account that the mother has employment and it may not be easy for her to attend a post separation parenting program (if one were appropriate) during her working hours.  I say “if one were appropriate” because I believe that the history of this matter is one that suggests that a post separation parenting program would not be of great assistance to either of the parties or the child in these proceedings.  Final orders have been made which provide for the child to live with his father and for his father to have sole parental responsibility for the child until he attains the age of 16 years. 

10. The child was born in September 1994 and will therefore be 16 next September.  There is no provision for the child to spend time with or communicate with the mother and I am told from the bar table that that is not taking place.  I have also been told from the bar table today and on other occasions, that there are criminal proceedings pending which relate to a charge the son, the child, is facing which relates to an alleged assault by him on the mother. 

11. In the unusual circumstances of this matter therefore, the discretion to make an order requiring the mother to attend a post separation parenting program is not appropriate. 

12. The other provisions in relation to section 70NEB(1) relate to changing the parenting orders or adjourning the proceedings and suspending or reviving the parenting orders in that time. Those orders are also not appropriate; final orders have been made. In relation to the contravention found to have occurred, namely the delivery up of personal belongings for the child, such an order would be entirely inappropriate.

13. The provisions of paragraph (d) of section 70NEB(1) relate to making an order that the person who committed the current contravention enter into a bond in relation to section 70NEC. The Court, however, is bound by the decision of the Full Court in Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341 in which the Full Court found that the provisions of Subdivision E did not set out consequences of a failure to comply with a bond and therefore it was pointless to create an obligation that is likely to be ignored.

14. As I have said previously, whilst I may not agree with the interpretation of the Full Court in the matter of Elspeth & Peter, Mark & Peter and John & Peter (supra) I am nonetheless bound by it.  It would be therefore inappropriate to require the mother to enter into a bond if entering into a bond was considered by the Full Court to be a pointless exercise.

15. Subsection (1)(e) is not applicable in this case as it refers to compensating a person for time that might have been spent with the child. 

16. Subsection (1)(f) provides power for the person who committed the current contravention to be ordered to pay some or all of the costs of another party or other parties to the proceedings.  The mother is also asking me to make an order that the father pay her costs of the unsuccessful proceedings. 

17. Subsection (1)(g) says if the Court makes no other orders in relation to the current contravention order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

18. Specifically Ms Croydon was asking me to make an order for costs in relation to those applications which had been unsuccessful (not in relation to the finding of the contravention without reasonable excuse).  I am required to consider the provisions of subsection (1)(g) in any event. 

19. The father seeks orders that relate to the mother being placed on a bond and attend a parenting program if she seeks to change any of the parenting orders. 

20. As I have indicated the mother, through her counsel, seeks an order for costs in relation to the unsuccessful applications. 

21. Under section 70NCB and section 70NEB the question of whether the provisions of section 117 apply to the making of an order for costs under Division 13A needs to be considered. Section 117(1) states that subject to subsection (2) and sections 70NFB(1), 117AA, 117AB and 117AC and 118 each party to proceedings under this Act shall bear his or her own costs. Section 70NFB(1) provides that:

    If this subdivision applies the Court must in relation to the person who committed the current contravention

    (a)    make an order under paragraph 2(g) unless the Court is satisfied that it would not be in the best interests of the child concerned to make that order.

22. The provisions of section 70NFB however, fall within Subdivision F which relate to “Contravention without reasonable excuse (more serious contravention)”. That is not applicable to the matters that are before me so section 70NFB(1) does not apply.

23. Section 117AA and AB and AC are not relevant to the proceedings before me in relation to these contraventions as they deal with matters which are either irrelevant or I have not made any finding.

24. Section 118 refers to frivolous or vexatious proceedings so it is not applicable to these proceedings.

25. We are therefore left with a curious situation where section 117(1) appears to apply. Therefore the provisions of section 117(2A) need to be considered when considering making any order for costs in proceedings which relate to failure to comply with obligations that affect children without reasonable excuse of the less serious type.

26. These sections can only be described as complex, convoluted and difficult to understand and apply.

27. However, what I conclude is that in this case I can make an order for costs, either against the father in relation to the unsuccessful applications he has brought by way of contravention or against the mother in relation to the contravention which has been successful, or make no order for costs. 

28. I have considered all of the provisions that are available to me in relation to penalties that might be imposed upon the mother.  Court orders which are made should be obeyed.  I have a limited number of options in relation to the contravention which I have found the mother committed without reasonable excuse, because it is of a less serious type, having not found that there has been serious disregard. 

29. However, I do consider that there should be significant consequences applying to any failure to comply with Court orders without reasonable excuse.  The mother has already incurred some serious consequences.  Not only has there been a significant amount of her time taken coming to Court, participating in proceedings, but she has also incurred what would appear to be substantial costs by way of legal costs.  I accept the father’s submission that it has been her choice to be legally represented, but taking into account the possible consequences if contraventions have found to have been committed, it is not unreasonable of the mother to have sought to be represented in these proceedings. 

30. The significant penalty therefore which the mother has incurred is the time spent in these proceedings and the funds expended on her costs.  I take into account those matters, and therefore whilst having found the contravention in relation to the delivery of the child’s goods was committed, and was committed without reasonable excuse, I propose to not impose a penalty, other than the penalty which relates to the question of whether the mother should recover her costs from the father for the unsuccessful proceedings. 

31. They are interconnected. I take into account, under the provisions of section 117(2A), not only the difference in financial circumstances of the parties (namely that the mother is currently in employment and contributing child support to the father for the care of the child) but also that the father is in receipt of a disability pension and is solely responsible for the care of the child, other than receiving the child support from the mother. The question would therefore be whether it would be just in all of the circumstances to order that the mother recover any of the costs from the father of the unsuccessful portion of the contravention hearings which commenced before me concerning the documents filed on 12 September 2008, 30 September 2008 and the final contravention of 11 March 2009.

32. Considering all of the factors in section 117(2A), and the provisions of Division 13A which relate to contraventions, I am satisfied that the penalty to be imposed upon the mother is in fact that she meet her own costs of all applications without any order being made to recover costs against the father, but that there be no formal order by way of sanction.

33. I therefore make no order by way of penalty officially for the contravention filed on 11 March 2009, and make no order for costs for either party in relation to any of the contraventions. 

34. That dismisses all current proceedings before the Court as far as I am aware.

I certify that the preceding fourteen (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  16 September 2009