Zane & Ikeda (No 2)
[2022] FedCFamC2F 1395
Federal Circuit and Family Court of Australia
(DIVISION 2)
Zane & Ikeda (No 2) [2022] FedCFamC2F 1395
File number(s): MLC 3391 of 2018 Judgment of: JUDGE HARLAND Date of judgment: 17 October 2022 Catchwords: FAMILY LAW – CONTRAVENTION – penalty hearing– costs – more serious category of contravention Legislation: Family Law Act 1975 (Cth) pt VII, ss 60I, 64B(2)(g), 70NEB, 70NFB, 70NFE Cases cited: B & W (No 1) [2003] FMCAfam 101
Brown & Brown [2005] FMCAfam 567
[D & D] [2005] FamCA 141
Davis & Davis [2006] FMCAfam 49
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655
H & V [2005] FMCAfam 519
Zane & Ikeda [2022] FedCFamC2F 867
Division: Division 2 Family Law Number of paragraphs: 31 Date of hearing: 28 September 2022 Place: Melbourne Counsel for the Applicant: Mr Glezakos Solicitor for the Applicant: Leslie Family Law Counsel for the Respondent: In person ORDERS
MLC 3391 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ZANE
Applicant
AND: MS IKEDA
Respondent
order made by:
JUDGE HARLAND
DATE OF ORDER:
17 October 2022
Amended pursuant to Rule 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 21 October 2022.
THE COURT ORDERS THAT:
1.Within 30 days of the date of these orders, the Respondent mother is to attend upon a Registrar at the Melbourne Registry of the Federal Circuit and Family Court of Australia to enter into a bond pursuant to the provisions of section 70NFE of the Family Law Act 1975 (Cth), with the following conditions:
(a)Such bond to be for a period of 24 months;
(b)The Respondent mother to be of good behaviour for the period of the bond;
AND IT IS DIRECTED THAT:
2.The Registrar explain to the Respondent mother:
(a)The purpose and effect of order 1; and
(b)The consequences that may follow if the Respondent mother fails to enter into the bond or having entered into the bond, fails to act in accordance with it.
AND THE COURT FURTHER ORDERS THAT:
3.Pursuant to section 70NBA of the Act:
(a)Order 16 of the Final Orders dated 26 November 2020 be discharged;
(b)Order 5 of the Final Orders dated 26 November 2020 insofar as it relates only to the child Y born in 2007 be discharged;
(c)The child X born in 2010 spend time and communicate with the Respondent mother at such times and on such conditions (including but not limited as to frequency, duration and supervision) as determined by the Applicant Father in writing, such time or communication to be initiated by the Applicant Father who is to have regard to X’s wishes in making such determination; and
(d)The Final Orders dated 26 November 2020 otherwise remain in full force and effect.
4.Pursuant to section 70NFB(2)(g) of the Act, the Respondent mother pay the Applicant father’s costs of these proceedings on an indemnity basis in the sum of $23,737 by 23 monthly instalments of $1,032 per month.
AND THE COURT NOTES THAT:
A.For the avoidance of any doubt, any time or communication between the children, or either of them, and the Respondent mother is to be initiated only by the Applicant father, and the Respondent mother is not to communicate with the children by any means unless authorised, in writing, by the Applicant father to do so and only in accordance with the conditions determined by the Applicant father.
B.Any application in this matter be listed before Judge Harland in the first instance.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Zane & Ikeda (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND
On 4 July 2022 I delivered written reasons with respect to the father’s contravention application. I found 40 counts proved against the mother without reasonable excuse. I dismissed 13 counts. Those reasons, Zane & Ikeda [2022] FedCFamC2F 867, should be read with these reasons
As the mother was unrepresented in the contravention proceedings in those reasons I explained the applicable legislative regime and set out in the text of ss.70NEB and 70NFB of the Family Law Act 1975 (Cth), noting that one of the issues I must determine at the penalty phase of the contravention hearing is whether or not contraventions fall into the more this serious category of contraventions as this is relevant to the determination of costs.
The mother made brief oral submissions and tendered two documents. It is convenient to state the mother’s position first. She urges the Court to find that the contraventions fall within the less serious category. She resists any order for costs referring to the father’s superior financial position. She urges the Court not to impose any penalty, including a bond, as she says she has already been punished over the past two years.
The father urges the Court to find that the contraventions fall within subdivision F as being in the category of more serious contraventions. I will determine this issue first, as it is relevant to the question of appropriate penalties.
Are the contraventions in the less serious or more serious category of contravention?
In urging the Court to find the contraventions fall within the more serious category, the father points to the history of this matter and the circumstances surrounding the interim change of residence and suspension of the mother’s time with the children in 2019 and the final consent orders agreed to by the parties after a day trial, when all parties were legally represented, as well as the prescriptive nature of those orders. I refer to and will not repeat my findings in my contravention judgment which discuss these matters.[1] The father’s written submissions also draw attention to these issues and stresses that a significant feature of this case, which was addressed in the three family reports prepared by Ms A, is that the mother has continually and secretively involved the children in the dispute and has coached them, undermining the father’s parenting.
[1]Zane & Ikeda [2022] FedCFamC2F 867
The full Court considered the question of serious disregard in Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655. I set out the discussion at paragraphs 61 to 66
The theme that emerges from an examination of several of decisions by Federal Magistrates is that “serious disregard” tends to be found in cases of deliberate, pre-meditated non-compliance with the orders; and continued and protracted breach.
In B & W (No 1) [2003] FMCAfam 101 (unreported) Ryan FM considered whether a mother showed serious disregard for her obligations when she contravened a residence order by not returning her child. Ryan FM said:
…The following factors contribute to my comfortable satisfaction that this matter should be dealt with as a stage 3 contravention. I am satisfied that the respondent deliberately intended prior to the end of contact that she would not return the children on 11 January 2003 and would keep them until 13 January 2003. Consequently her actions were considered and not impulsive. On 12 January 2003 when the applicant attended her home she had the opportunity to return the children to him without any difficulty to her. When she called the children into the front yard she involved them as direct observers of her refusal to return them to their father. Next, the respondent invited JM's assistance to maintain her refusal to comply with the orders on 12 January 2003 with reckless disregard to the likelihood that he would use considerable physical force to the applicant in the presence of the children. She knew some force was likely. At the end of the assault and before she went to Queensland she had the opportunity, absent JM's overt and direct influence, to return the children to the applicant or his nominee and did not do so. Finally, the respondent kept the children until 1 March 2003. The continuing nature of the breach is a serious issue.
For all of these reasons and in spite of the submissions to the contrary made by [the mother’s solicitor], I am satisfied that the respondent has behaved in a way which shows a serious disregard for her obligations under the primary order. Because of the objective seriousness of the breach, I am satisfied that this matter cannot be dealt with appropriately under subdivision B…
In H & V [2005] FMCAfam 519 Brown FM dealt with a father who contravened a residence order when he did not return the children to their mother. Brown FM accepted the submission that the father had shown serious disregard for his obligations under the residence order in light of:
…the length of time the children were out of [the mother’s] care [almost 7 weeks]; the fact that they were recovered only after the intervention of the police and a recovery order had been made; the fact that [the father] took the children interstate far away from where they habitually lived; and the fact that [the father] was present when the order contravened was made and is well conversant with court procedure and the importance of adherence to orders of the court.
In Brown & Brown [2005] FMCAfam 567 Connolly FM dealt with a mother who contravened orders by failing to give contact on two occasions. His Honour viewed the circumstances of the breach and the mother’s conduct at the attempted changeover as constituting a serious disregard of her obligations saying:
…The respondent’s behaviour in failing to facilitate the contact between the husband and the children on 16 July 2005 displayed an absolute disregard of the relationship that these children have with their father and her oral evidence given yesterday indicated that she still has that disregard. If the wife’s behaviour were to continue in this vein then there is no doubt that the children’s relationship with their father will be destroyed”
In Davis & Davis [2006] FMCAfam 49 Riethmuller FM was satisfied that a mother behaved in a way that showed a serious disregard of her obligations under an order for contact. His Honour said:
In this matter, the mother has not previously been found to have contravened a court order. However, I am satisfied that in this case the mother has behaved in a way that showed a serious disregard of her obligations under the primary order. I come to this conclusion as a result of the nature of the circumstances attendant upon a number of the contraventions that were the subject of the proceedings, in particular:
her conduct in attending upon a shop…rather than attending for contact handover;
her comments during the course of the hearing that she ‘refuses to be a sheep following a court order’;
her continued resistance of and attempts to ensure that the father did not obtain a seven-day period of contact as specifically ordered by Brown J: see [D & D] [2005] FamCA 141;
her lack of explanation with respect to count 8, despite the fact that she was clearly available later that day; and
her lack of any explanation (that has any degree of credibility about it) for the events that occurred with respect to count 1, particularly given that count 1 related to the very first contact period that was ordered by her Honour.
I also have regard to her demeanour and conduct during the course of the proceedings.
What seems to be the common thread is that the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on a first breach does not appear to be sufficient to attract the more stringent sanctions set out under subdivision F.
The father’s counsel also highlighted the findings I made in the contravention proceedings. Significantly, the mother breached the orders on the very same day they were made. She consented to the orders being made at a time when she was legally represented and written submissions were pending after hearing a four day trial. He also refers to the repeated nature of the breaches, and referred to the fact, as noted in my reasons, that the mother messaging the girls at all without the father’s written consent was a breach of orders. Regardless of the content of any messages, as the concern was not only with respect to content, but also the frequency of such messages undermining the father’s parenting.
As I noted in my contravention reasons, several aspects of the mother’s evidence were concerning. Her evidence was unreliable in several respects, and I did not accept her contention that she believed she had the father’s consent to her messaging children. Although this is the first time the mother has been found guilty of contravening the orders, in the circumstances of this case, I am satisfied that the mother showed a serious disregard for her obligations under the orders and that the contraventions are more serious in nature and should be considered under subdivision F.
What penalties should be imposed?
The father seeks the following relief:
(1)that the final parenting orders be varied;
(2)that the mother be required to enter into a bond for two years to be of good behaviour and to comply with the orders; and
(3)indemnity costs.
I will discuss each of these in turn.
Should the parenting orders be varied?
This is a vexed issue. Whilst I have the power to vary the orders regardless of whether the contravention is established, I am still required to consider whether or not doing so is in the best interests of children. The father’s primary position is that I should vary the orders with respect to both girls, discharging order 16 of the final orders dated 26 November 2020 and ordering that the mother spend time with the children at such times and on such conditions with respect to supervision as determined by the father. As there are currently proceedings in the Children’s Court of Victoria, orders with respect to Y are expressed to take effect upon the expiry of the Children’s Court orders.
I am informed that the Department of Families, Fairness and Housing has indicated an intention to continue that order for another 12 months, at which time Y will be 16. Through his counsel, the father acknowledged that the prospect of Y returning to live in his care are remote. Counsel submitted that the father would not bring a contravention application in that regard. Counsel accepted that the other option open to me would be to discharge the orders with respect to Y not make any orders for Y. He submitted that this is preferable to having inconsistent orders in place with respect to the two children.
The mother tendered Y’s week 25 2022 student progress report. That report does not include commentary from any of Y’s teachers. The report shows that overall Y has good attendance and is progressing well in her classes. That is positive, however it is not a complete picture as there are ongoing concerns about Y’s mental health. This is consistent with comments on the draft child protection plan which records that Y attends school regularly, though may choose or ask not to attend when she is struggling with her mental health. She is smart and is doing two VCE subjects in year 10 next year, although she can struggle to engage in class when struggling with her mental health. The focus of fortnightly school meetings is in addressing her mental health, rather than her learning.
The draft case plan refers to the 2020, orders and the concerns about the mother’s coaching of Y undermining of Y and the father’s relationship, and notes that the Department assessed that Y was at risk in January 2021 because of her absconding, self-harm and suicidal ideation which resulted in her being hospitalised. When the Department became involved for a time Y was in and out of home care. She was placed in her mother’s care, where she remained in September 2021. She maintains that she does not want to have any contact with her father. It is also clear that Y continues to have significant mental health concerns. She is engaging in an early intervention program for young people with borderline personality disorders. The plan’s goals include Y having quality time with her sister and starting to have contact with her father in accordance with her wishes. There is also a safety plan for Y to address what should happen if her mental health declines. It is clear from the plan that the indication is to support Y if she wishes to improve her relationship with her father but also notes the negative impact on Y when she felt she has been forced to do something in the past.
The nature of the harm identified by this Court was and continues to be psychological and emotional harm to the children. The Court acknowledged when taking the drastic step of changing the children’s residence and further it was always acknowledged that this might not be successful but there were real long term risks to the girls’ long term psychological and emotional wellbeing if nothing was done. It is apparent that Y has suffered significant mental health issues and continues to. It is significant that one of the goals noted in the plan to commence on 30 August 2022 and being in progress is to support Y having less presentations to the J Hospital and less crisis interventions. The fact that Y is intelligent and is doing well academically does not detract from the clearly serious concerns for Y’s long term wellbeing.
I am troubled by making an order that realistically is unlikely to ever be workable which is acknowledged by the father. I do not see any benefit to Y in order 16(c) of the father’s proposed orders being in place. It flows from this that order 5 in so far as it concerns Y should also be discharged. I will not make any other orders with respect to Y.
The issue of parental responsibility was not addressed before me. In those circumstances I will leave order 2 of the 26 November 2020 undisturbed.
I accept the father’s submissions with respect X and will discharge order 16 and make the order sought by the father with respect to X at 2(b) of his minute of orders. As I observed in my early reasons even if the mother’s messages were innocuous and this is largely unknown, the volume and frequency of those messages would have made it more difficult for the girls to adjust to living with their father as they would have felt their mother’s constant presence. As I also noted, the mother’s evidence that the father waived the requirements of the order made just that day defies belief. The order the father seeks makes it very clear that any contact arrangements including the manner of them is to be determined by the father.
The father also sought an order pursuant to section 64B(2)(g) that the mother be restrained from making any further application under part VII of the Act with respect to Y or X without first seeking leave of the Court and that such application be listed before me, if at all possible. I draw attention to my comments at paragraphs 89 and 90 of the contravention judgment.
The father tendered a series of correspondence where in the mother sought that the father participate in family dispute resolution and obtained a section 60I certificate. The mother has given no indication in that correspondence as to what orders she would seek. It is clear from the tendered material that both the mother and Y are keen for the time between the two sisters be increased and become unsupervised. Currently the time is professionally supervised by the Department. It is a vexed issue as the risk is of psychological and emotional harm and the potential for X to adopt Y’s narrative about her father, damaging her relationship with him and the extended paternal family members such that she may be placed under pressure to live with her mother and sister. I am concerned by references in the draft case plan to the mother seeking some supervision be carried out by her family members as their understandings of the risk are unknown.
It is clear from the correspondence between the mother and the father’s lawyers that she has continued to seek additional time with X. The father’s lawyer notes that the mother went so far as to instruct her barrister to ask the Children’s Court for unsupervised time with X, despite X not being subject of that Court’s jurisdiction. One of the complaints the father makes in communications with the family contact service is the fact that rather than the mother’s supervised time taking place on a regular and predictable basis as provided for in the orders, the mother frequently seeks to change the arrangements often at short notice has resulted in haphazard patterns of time, which has caused X confusion and distress. Importantly, in response to a letter from the contact centre dated 13 May 2022 the father’s lawyers point out that is unfair to criticise the father as being difficult given the clear terms of the orders and the context in which those orders were made. It would be of concern if the supervisors were not fully aware of the reasons for supervision and the particular risks.
Having had the benefit of observing the mother in court on several occasions and consistently with Ms A’s observations, the mother often presents as being a positive light and at times charming. But what is absent is any real recognition of the nature of the risks. Whilst the mother regularly refers to having done wrong and seeming to apologetic for it, at the same time she is keen to say that she has not committed any breaches since, and further, refers to receiving therapy. The mother does not give any indication that she appreciates the nature of the concerns and the harm caused to the girls and does not indicate any insight into this. Further, as I indicated earlier in these reasons, the narrative that she is keen to present in Court also bears little resemblance to reality which only heightens the concerns.
The correspondence with respect to the supervisors is also concerning. The mother wrote to the contact supervisor requesting that Y be added to the visits with X and said that that was as per the original orders and said the Children’s Court made separate orders. The father’s lawyer sent an email to the contact centre on 29 June 2020. As he points out in this letter, the mother’s request is misleading as the final parenting orders provide for the father to have sole care of both children and very restricted supervised time with their mother. He also points out that it is only after a lengthy hearing in the Children’s Court that the Children’s Court determined Y and X should have supervised contact with each other alone and separately to X’s contact with her mother. He further pointed out that the mother, having been a party to those proceedings, was well aware of the Children’s Court orders. These emails raise concerns about the extent of the supervisors understanding as to the nature of the risks which are psychological and emotional.
The letter from Leslie Family Law to J Contact Centre dated 31 August 2022 note that the Department was considering progressing supervised visits between siblings, but also introducing Y to the mother’s visits with the X and for those visits to be potentially supervised by members of the mother’s family. Such supervision is highly unlikely to be effective, particularly given that there is no indication from the mother that she accepts any real responsibility and or appreciation of what would need to be done to address that risk. As the mother appears to lack insight into this, and certainly has not addressed it in evidence, it is difficult to see how X could be properly protected for supervision by family members.
It is also of concern that it appears from the correspondence tendered that in 2021 and 2022 the mother has continued to seek assistance from various actors except for bringing an application with respect to the orders affecting X in the court which has jurisdiction.
The mother tendered a letter of apology she emailed to chambers without copying the other party. Her letter does not give the court assure that she accepts responsibility for her actions. I accept the father’s submissions that shows the mother continues to deflect responsibility.
The main import of what the father is trying to do is to ensure that in the event the mother commences proceedings, those proceedings come directly before me, rather than proceeding the usual pathway set out in the case management practice direction due to the complex history of the matter and my familiarity with it. I certainly accept that it is appropriate for any application in this Court in this matter to come before me in the first instance, and I will make a notation and direct that a note be placed on file to that effect.
Should the mother be required to enter into a bond?
The correspondence heightens concerns about the mother’s understanding of the seriousness of her contraventions and the importance of ensuring she complies with the orders in the future.
The father does not seek that there be any financial surety or security attached to the bond but seeks that the bond be in place for two years which is the maximum period. Section 70NFE empowers the court to require a party to enter into a bond to be of good behaviour and may include other conditions. The father seeks that the bond require that the mother also be required to comply with current and future orders. I understand the reasoning for that to emphasise the importance of the mother complying with orders and it is commonly included in orders for a party to enter into a bond. However the mother is already obliged to comply with the orders. If the mother breaches the orders during the period of her bond that may need to further contravention proceedings and would be a relevant consideration to the imposition of more serious penalties.
I consider that it is appropriate to acquire the mother to enter into a bond in that to use as an appropriate period given the nature of the contraventions. I will direct that she attend upon a registrar within 28 days for the purpose of having the bond explained to her and her signing the bond.
what costs order should be made?
As I have found that the contraventions fall within the more serious category I am obliged to order the mother pay all costs, unless I find it is not in the children’s best interests. The father’s counsel tendered invoices and I am satisfied that the costs the father seeks are limited to the contravention proceedings. Given the number of breaches and length of the trial those costs are reasonable. Those costs total $23,737 and include the costs of the appearance at the penalty hearing. The father proposes that the mother pay costs by way of instalments $1,000 per month. He submits that this could be done by way of offsetting it against the monthly child support payments he makes for Y of $927 a month. I have examined the invoices tendered and am satisfied that they relate to the contravention only and not the Children’s Court proceedings. I am further satisfied that the costs sought are reasonable given the fact that the material including the subpoenaed material required to establish the breaches was extensive and the matter has taken two and a half days of hearing time. I accept that the father’s income is far higher than the mother’s. However, that is not a bar to making a costs order in appropriate circumstances and I am satisfied that the mother should pay costs in the sum of $23,737.00. The father proposes that the mother pay his costs by way of monthly instalments of $1,000.00 acknowledging his higher income. He further proposes that this could be offset from his monthly child support obligations which are currently $927.25. That would effectively require the mother to pay $72.75 a month subject to any changes to the father’s child support assessment. It will be a matter for the parties if they agree to offset these sums in that manner as agreed between them.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 17 October 2022
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