Zeller and Whitby (No.8)

[2018] FCCA 1477

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZELLER & WHITBY (No.8) [2018] FCCA 1477

Catchwords:
FAMILY LAW – Contraventions – child aged 9 – Contraventions proved without reasonable excuse in previous decisions – penalty phase – sentence of imprisonment – sentence of imprisonment conditionally suspended.

Legislation:

Family Law Act 1975, ss.70NEA, 70NEB, 70NFA, 117

Federal Circuit Court Rules 2001, r.21.02

Cases cited:

McClintock & Levier [2009] FamCAFC 62; (2009) FLC 93-401; 41 Fam LR 245; 233 FLR 179

Zeller & Whitby(No.5) [2017] FCCA 2523
Zeller & Whitby (No.6) [2017] FCCA 3314
Zeller & Whitby (No.7) [2018] FCCA 1471

Applicant: MR ZELLER

Respondent: MS WHITBY

File Number: SYC 2228 of 2011

Judgment of: Judge Monahan

Hearing date: 16 May 2018

Date of Last Submission: 16 May 2018

Delivered at: Sydney

Delivered on: 22 May 2018

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

Solicitors for the Independent Childrens Lawyer: Mr Ng of Adams Partners Lawyers

ORDERS

THE COURT ORDERS THAT:

1. In relation to paragraph 1 of the Orders made by Judge Sexton on 18 October 2017, the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.

2. In relation to paragraph 2 of the Orders made by Judge Sexton on 18 October 2017, the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served concurrently with paragraph 1 herein and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.

3. In relation to paragraph 3 of the Orders made by Judge Sexton on 18 October 2017, the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served concurrently with paragraph 1 herein and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.

4. In relation to Finding II of the Orders made on 16 May 2018 (as amended on 21 May 2018), the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served concurrently with paragraph 1 herein and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.

5. In relation to Finding I of the Orders made on 16 May 2018 (as amended on 21 May 2018), the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served consecutively thereafter and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders. 

6. In relation to Finding III of the Orders made on 16 May 2018 (as amended on 21 May 2018), the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served consecutively thereafter and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.

AND THE COURT FURTHER ORDERS THAT:

1. Paragraph 2 of the Orders dated 21 December 2017 be varied to read as follows:

   "2.  The parties do all acts and things to cause a psychologist to inform the child [C] (also known as [C]) born … 2008 (“the child”) of his biological father.”

2. For the purposes of these Orders:

   (a)The child be told of his biological heritage by Ms A and the father pay all costs associated with the appointments with Ms A by making such payments no later than 48 hours before the appointment.

   (b)The Independent Children’s Lawyer advise the father and B School in writing of the date and time and location of the appointment for the child to attend upon Ms A (“the Appointment”). 

   (c)The father is authorised to collect the child from B School and deliver the child to Ms A immediately after collecting the child from B School and return the child to B School immediately after the conclusion of the Appointment.

3. The Independent Children’s Lawyer provide a copy of these Orders to B School within 72 hours from the date of these Orders.

4. The Independent Children’s Lawyer be at liberty to provide a copy of these Orders to Ms A.

5. Paragraph 7 of Orders dated  21 December 2017 be varied to read as follows:

   “7. The mother and the father do all acts and things and sign all documents to commence the process for the child [C] (also known as [C] and [C]) born … 2008 to obtain Australian Citizenship.”

6. For the purposes of these Orders:

   (a)the Applicant Father cause the necessary citizenship application forms to be sent to the Mother by not later than 5:00pm on 29 May 2018;

   (b)the Respondent Mother is under a positive obligation to sign the citizenship application  forms and cause the original signed documents to be forwarded to the Father by not later than 5:00pm on 5 June 2018; and

   (c)the Applicant Father thereafter forthwith lodge the citizenship application forms with the Department of Home Affairs.

7. Within three (3) months from the date of these Orders, the Respondent Mother pay to the Applicant Father the sum of $780.00 being Ms A’s costs thrown away.

8. Within six (6) months from the date of these Orders, the Respondent Mother pay to NSW Legal Aid the sum of $2,350.00 being the costs of the Independent Children’s Lawyer in these Contravention proceedings.

9. All extant Contravention Applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.For the purposes of these Orders the Respondent Mother has been sentenced to a period of three (3) months imprisonment in total which is wholly suspended for a period of two (2) years on the conditions stated above.

B.In the event that the Mother fails to comply with the conditions of the suspended sentence stated above, then a Warrant for Commitment can be issued for the Mother to serve the imprisonment term.

C.These Orders were made by the Court following the delivery of ex tempore reasons today.

D.Judge Sexton dismissed the Father’s application for costs on 18 October 2017.

E.The matter remains listed on 10 July 2018 before Judge Henderson.

F.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders. 

IT IS NOTED that publication of this judgment under the pseudonym Zeller & Whitby (No.8) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2228 of 2011

MR ZELLER

Applicant

And

MR WHITBY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This decision determines the penalty phase of the following Application – Contraventions filed by MR ZELLER (“the father”) against MR WHITBY (“the mother”).  The applications were filed on 19 April 2017, 30 January 2018 and 26 April 2018 respectively. 

2. The hearing of the contravention relevant to the application filed on 19 April 2017 was heard by Judge Sexton last year.  The hearing of the 2^nd and 3^rd contravention applications was heard by myself last Wednesday, 16 May 2018. 

3. Both parties were self-represented on that occasion and the Independent Children’s Lawyer (“ICL”), Mr Ng, appeared as a courtesy to the Court following a grant from New South Wales Legal Aid for that to occur. 

4. Unless otherwise stated, any statutory references I make in these reasons today will be to the Family Law Act 1975 (“the Act”) and the Federal Circuit Court Rules 2001 (“the Rules”).

Background

1. This matter has a long history.  The relevant background details are set out in paragraph 14 of my previous decision Zeller & Whitby (No.6) [2017] FCCA 3314 and are additionally set out in paragraphs 8 to 33 of the decision of Judge Sexton in Zeller & Whitby (No.5) [2017] FCCA 2523. In summary, in that decision released on 18 October 2017, Judge Sexton found that the mother had contravened relevant orders on three separate occasions. In addition, last Wednesday, 16 May 2018, I found that the mother contravened three different relevant orders on a further three occasions, a total of six contraventions; see Zeller & Whitby (No.7) [2018] FCCA 1471. In other words, the mother has been found to have contravened relevant orders on six occasions without reasonable excuse.

2. I note, again, that both parties were self-represented when the proceedings were before me last Wednesday and that Mr Ng appeared as ICL, courtesy of a special grant from New South Wales Legal Aid.  That is somewhat unusual for New South Wales Legal Aid to fund an Independent Children’s Lawyer for a contravention application, however the decision of New South Wales Legal Aid might highlight why the contravention applications were serious matters indeed.

Relevant Law

1. The Court must now decide what consequential orders are appropriate pursuant to the relevant provisions of the Act, they being Division 13A of Part VII of the Act. Subdivisions E and F of Division 13A when read together deal with a contravention or contraventions without reasonable excuse. In this case, I note, that the Court provided a copy of the relevant provisions of the Act to the parties prior to the penalty phase hearing in order to have those provisions interpreted and give the parties sufficient time to prepare their submissions. In addition, the Court gave the parties an overview of the relevant law as outlined further below.

2. In addition, the ICL also provided the Court with submissions as to what he understood the relevant law to be and in addition the ICL gave his proposals as to what may be an appropriate outcome in respect of this aspect of the contravention proceedings. The substantive difference that underlines subdivisions E and F or general principle appears to be identified in section 70NFA(2)(b) of the Act, being whether:

   The Court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.

3. Generally speaking subdivision E applies to cases the first time that a sanction has been applied and subdivision F deals with the more serious contraventions. Section 70NEA and section 70NFA provides certain criteria as to the appropriate application of subdivisions E and F. In certain circumstances the Court may determine that a more serious contravention applies to a matter where a party has not been previously sanctioned by earlier contraventions.

4. Section 70NEA states as follows:

   (1)  Subject to subsection (4), this Subdivision applies if:

   (a)  a primary order has been made, whether before or after the commencement of this Division; and

   (b)  a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and

   (c)  the person does not prove that he or she had a reasonable excuse for the current contravention; and

   (d)  either subsection (2) or (3) applies;

   and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred.

   (2)  For the purposes of paragraph (1)(d), this subsection applies if no court has previously:

   (a)  made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

   (b)  under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.

   (3)  For the purposes of paragraph (1)(d), this subsection applies if:

   (a)  a court has previously:

   (i)  made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

   (ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and

   (b)  the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.

   (4)  This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.

5. Section 70NFA provides as follows:

   (1)  Subject to subsection (2), this Subdivision applies if:

   (a)  a primary order has been made, whether before or after the commencement of this Division; and

   (b)  a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and

   (c)  the person does not prove that he or she had a reasonable excuse for the current contravention; and

   (d)  either subsection (2) or (3) applies.

   Note:          For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.

   (2)  For the purposes of paragraph (1)(d), this subsection applies if:

   (a)  no court has previously:

   (i)  made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

   (ii)  under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and

   (b)  the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.

   (3)  For the purposes of paragraph (1)(d), this subsection applies if a court has previously:

   (a)  made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

   (b) under paragraph 70NEB(1)(c),adjourned proceedings in respect of a contravention by the person of the primary order.

   (4)  This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.

   (5)  This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.

6. Apart from a time lost order, which is not relevant to this case, the Court has a range of powers to deal with an inexcusable contravention and these include, firstly, with respect to determinations of a less serious contravention (see section 70NEB(1)):

   ·an order to attend a “post-separation parenting program” to better understand and appreciate the obligations  created by parenting orders;

   ·a time lost order;

   ·an adjournment to enable either or both of the parties to apply for a further parenting order;

   ·a bond under section 70NEC (and impose a fine of up to 10 penalty units if a party without reasonable excuse fails to enter into the bond);

   ·an order to pay all or some of the expenses of the other party;

   ·an order to pay some or all of the costs of the other party;

   ·and if the Court makes no order, an order to pay some of the costs of the other party. 

7. In the more serious contravention cases (see section 70NFB(2)), the Court can do the following:

   ·a community service order;

   ·a bond under section 70NFE;

   ·a time lost order;

   ·a fine (of not more than 60 penalty units);

   ·a sentence of imprisonment (for not more than 12 months);

   ·an order to pay all or some of the expenses of the other party;

   ·an order to pay all the costs of the other party;

   ·an order to pay some of the costs of the other party. 

8. Pursuant to section 70NAF(3), the Court may only make an order for a community service order or a fine or a sentence of imprisonment if the Court is satisfied beyond reasonable doubt that the grounds for the making of the order exist. 

9. An order made under section 70NFB of the Act may be expressed to take effect immediately, at the end of the specified period, or on the occurrence of a specified event (see section 70NFB(6)).

10. In addition:

    ·when the Court makes an order under section 70FNB of the Act the Court may also make any orders the Court considers necessary to ensure compliance with the order that has been contravened (see section 70NFB(7)); and

    ·regardless of whether the contravention is established or not the Court has the power to vary the “primary” (relevant) order (see section 70NBA).   

11. The relevant statute provisions have been discussed in numerous decisions of this Court, the Family Court, and the Full Court of the Family Court of Australia, including the case of McClintock & Levier [2009] FamCAFC 62; (2009) FLC 93-401; 41 Fam LR 245; 233 FLR 179 in which Finn, Coleman & Cronin JJ in separate judgments carefully explain the relevant purpose of consequential orders under Division13A and the relevant factors that are to be taken into account. At this point I note the following as stated by Finn J:

    50. The words “punish” or “punishment” are not found in Division 13A other than in s 70NFH, which is concerned with the operation of other laws which may apply to the act or omission which constitutes a contravention for the purposes of Division 13A, and in particular with ensuring that a person is not “punished” twice in respect of the same act or omission.

    51. I accept that the use of the concept of “punishment” in s.112AP and the virtual absence of that concept from Division 13A is a sufficiently important distinction between the two sets of provisions such that it must have some significance.

12. Justice Coleman stated:

    156. In my view, given the coercive nature of proceedings under Division 13A, it cannot be assumed, in the absence of a clear basis for doing so, that broader considerations such as ensuring that an offender was “adequately punished for the offence in a way that is just and appropriate”, preventing crime by deterring the offender and other people from committing the same or similar offences, and protecting the community from the offender, are relevant to the exercise of such discretion.

    157. As noted earlier, learned Counsel for the father sought by reference to the decision of the High Court in Witham and Holloway (supra) to argue that, whether punishment was imposed for coercive or punitive reasons, it remained “punishment”. It was thus submitted that there is no basis for suggesting that the sentencing principles in the exercise of discretion in coercive and punitive proceedings differed. I do not accept that such a conclusion follows from or can be read into the decision of the High Court in Witham (supra). As Brennan, Deane, Toohey and Gaudron JJ said in Witham (at ALR 420)the case turned on the standard of proof which was applicable. It does not in my view follow that because the outcome of coercive and punitive proceedings may be the same in terms of the “punishment” determined, that the outcomes are necessarily reached by reference to the same principles, or in pursuance of the same objectives.

    158. Whilst I accept that the learned Federal Magistrate was entitled to have regard to relevant sentencing principles or guidelines, I am unable to accept that his Honour was entitled to have regard to ensuring that the mother was “adequately punished” (our emphasis) in a way that was “just and appropriate”, to prevent “other people from committing the same or similar” breaches, to “protect the community” from the mother, or, other than for the purposes of procuring compliance of the court’s orders, “to denounce the conduct” of the mother.

1. And finally, Cronin J stated:

   230. In my view, there is a distinction between the coercive and punitive provisions of the Act.

   231. It is helpful to compare Division 13A of Part VII to Part XIIIA and Part XIIIB.  Section 70NAA(1)  deals with the power of a court to make orders to enforce compliance with orders affecting children. Part XIIIA  specifically refers to “sanctions” and importantly, empowers a court in exercising its “additional sentencing alternative” to apply State or Territory laws with respect to certain sentences. Whilst there are certain similarities of language between s 70NFC and s 112AG(5), the distinction is clear between the coercive nature of the orders in Division 13A and the punitive orders in Part XIIIA.

   232. Similarly, the language of Part XIIIB relating to contempt of court could not be a more stark way of contrasting the intention of the Legislature. Section 112AP(2) empowers a court to punish a person for contempt. There is no reference to punishment in Division 13A.

   233. The focus of a court therefore in dealing with a contravention application under Division 13A must be in making orders which will enforce future compliance with its orders.

   234. For a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like-minded persons comply with orders relevant to them, in other words, to make an example of them, would be an error of law.

   235. Counsel for the mother was critical of [the] FM for his reference to the ACT sentencing legislation but it will be seen from his Honour’s reasons that he was simply seeking some guidance as to what relevant factors should be applied to determine what is an appropriate way to encourage compliance with court orders. Without any other legislative guide in Division 13A, I see no reason why a court cannot inform itself by any number of considerations in the exercise of its discretion providing those considerations are set out clearly and the court’s focus is on the individual party rather than on general deterrence or policy.

   236. The very concept of tailoring an order to ensure compliance by that party may have the effect of dissuading other like-minded persons from behaving in similar ways but that cannot be the deliberate purpose of the court dealing with the application. The provision is intended to have that party comply with their particular orders relating to their children not to orders generally. Section 70NAA refers to “the powers that a court...has to make orders to enforce compliance with orders under this Act affecting children”. In my view that should not be read generally but rather, specifically to the particular parties because if sub-division F applies and a court determines to vary the existing parenting orders under s 70NBA(1) regard must be had to the best interests of the child as the paramount consideration (see s 70NBA(2).  Section 70NFB(1) relating to the making of an order for costs against a party has similar directions about the consideration of the welfare of the child.

   237. All of the provisions of Division 13A therefore focus on the parties and the court’s obligation to endeavour to make its orders work if they have been contravened.

2. There are other requirements that must be fulfilled depending on the actual decision of the Court. 

3. For example, if the Court imposes a bond to be of good behaviour for a less serious offence (see section 70NEB(d)), the provisions of section 70NEC must be complied with and this includes the provision of an explanation as to the requirements of the bond.

4. If the Court imposes a sentence of imprisonment for a more serious contravention (see section 70NFB(2)(e)) the provisions of section 70NFG must be complied with. That section provides as follows:

   (1)  A sentence of imprisonment imposed on a person under paragraph 70NFB(2)(e) is to be expressed to be:

   (a)  for a specified period of 12 months or less; or

   (b)  for a period ending when the person:

   (i)  complies with the order concerned; or

   (ii)  has been imprisoned under the sentence for 12 months or such lesser period as is specified by the court;

   whichever happens first.

   (2)  A court must not sentence a person to imprisonment under paragraph 70NFB(2)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2).

   (3)  If a court sentences a person to imprisonment under paragraph 70NFB(2)(e), the court must:

   (a)  state the reasons why it is satisfied as mentioned in subsection (2); and

   (b)  cause those reasons to be entered in the records of the court.

   (4)  The failure of a court to comply with subsection (3) does not invalidate a sentence.

   (5)  A court that sentences a person to imprisonment under paragraph 70NFB(2)(e) may:

   (a)  suspend the sentence upon the terms and conditions determined by the court; and

   (b)  terminate a suspension made under paragraph (a).

   (6)  A court, when sentencing a person to imprisonment under paragraph 70NFB(2)(e), may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (7) after he or she has served a specified part of the term of imprisonment.

   (7)  A bond for the purposes of subsection (6) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years.

   (8)  A court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned.

(9)  To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 70NFB(2)(e) for failure to make a payment under a child maintenance order does not affect the person's liability to make the payment.

Submissions

The father

1. The father asked the Court to impose a sentence of imprisonment upon the mother.  The father argues that such an outcome is appropriate for five reasons.

2. Firstly, the father argues that the mother has never complied with any of the numerous orders of this Court that have been made requiring her to facilitate the child’s attendance with an expert consultant to be informed of his biological heritage (i.e that the father is the biological father of the child). 

3. Secondly, the father argues that in not complying with these numerous Court orders the mother has jeopardised [C]’s psychological development. 

4. Thirdly, the father submits that the mother has drawn out these proceedings unnecessarily by filing numerous appeals to the Full Court and to the High Court all of which have been unsuccessful. 

5. Fourthly, given the mother’s serious and flagrant behaviour or disregard for the Court’s orders the father doubts that a bond or a community service order would assist and hence he argues the only viable option is imprisonment.  

6. Fifthly, the father also seeks his costs and expenses.  He advised the Court that he has incurred legal costs totalling $5,373.50 (in respect of the prosecution of the application contravention heard by Sexton J) and $780 out of pocket expenses relevant to his costs thrown away by the mother failing to comply with the relevant Court orders. He also, I note, gave evidence that he has included costs in respect of the mother’s failure to comply with orders relevant to presenting the child to Ms B but those costs were not particularised in his evidence. 

The ICL

1. The ICL expressed concern about the impact a sentence of imprisonment, if imposed by the Court upon the mother, would have on the child, [C].  While a prison sentence was not supported by the ICL, the ICL did acknowledge however, that the mother’s actions certainly warranted consideration of the imposition of such an outcome.  If the Court was of the view that a sentence of imprisonment was appropriate the ICL submitted that the sentence should be suspended for an appropriate period of time on the condition that the mother comply with all Court orders and directions of the Court.

2. The ICL submitted that the Court may also consider the imposition of a bond to be of good behaviour for an appropriate period.  While the ICL did not support the imposition of a fine, the ICL did seek an order for the mother to pay the ICL’s costs being $2,350.  This request was a condition of the Legal Aid grant the ICL received from New South Wales Legal Aid.  The ICL also advised that to date his costs for the substantive proceedings total $23,128 and approximately $3,000 for the costs of the numerous appeals.  The ICL submitted that the mother should have some time to pay the requested costs and that any payment be suspended during any period the mother spends in prison should such a sentence be imposed.

3. The ICL also sought a change to the primary orders that have been made to date relevant to the issue of [C] being informed that the father is his biological father.  In this respect the ICL provided the parties and the Court with a minute of proposed orders:

   1. That  the  mother  is  to  ensure  that  the  child  [C]  (also  known  as [C]) born … 2008 attends B School  on  [24  May 2018] [30 May 2018] [31 May 2018].

   2. That the Father is  authorised  to  collect  the  child  from  B School  on [24 May 2018] [30 May 2018] [31 May 2018] for the purpose  of  compliance  with Orders 3 and 4 below.

   3. That the Father is to deliver the child to Ms A immediately after collecting the child from B School and return the child to B School immediately after the conclusion of the child's meeting with Ms A.

   4. That the child is to be told of his biological heritage by Ms A and the father shall pay all costs associated with the appointments with Ms A by making such payments no later than 48 hours before the appointment.

   In the alternative

   1. That the Father is authorised to collect the child [C] (also known as [C]) born … 2008 from B School for the purpose of compliance with Orders 2 and 3 below.

   2. That the Father is to deliver the child to Ms A immediately after collecting the child from B School and return the child to B  School immediately after the conclusion of the child's meeting with Ms A.

   3. That the child is to be told of his biological heritage by Ms A and the father shall pay all costs associated with the appointments with Ms A by making such payments no later than 48 hours before the appointment.

The mother

1. Overall, as the mother’s response was that she was not guilty of contravening the Court’s orders, the Court has assumed she opposes the imposition of any penalty and resists any order to pay costs or compensation.  In respect of the latter point the mother failed to comply with the Court’s order for her to file and serve a Financial Statement.  That is disappointing and consistent with her failure to cooperate with Court orders and directions.  As a consequence I allowed the mother to give some oral evidence as to her financial circumstances, albeit reluctantly.

2. In summary, the mother asserts that she fully relies on Centrelink benefits (and primarily the parenting payment).  She receives no child support from Mr Zeller or Mr Whitby, Mr Whitby being the father of the mother’s second child, [D].  It does not appear that the mother has ever sought an assessment of child support in any event for either of her children.  The mother is currently pregnant with her third child but she declined to inform the Court who the father of that unborn child is.  The mother asserts that after paying rent each week of $575 she has about $100 left over from her Centrelink benefits for other costs.

3. The mother also asserts that she has no assets and little money in bank accounts.  Both [C] and [D] attend B School which is close to her rented accommodation although the mother asserts that she is currently on the waiting list for New South Wales public housing. 

Discussion and Findings

1. The Court has found on both an interim and final basis that it is in [C]’s best interests for him to be informed about his biological heritage.  The mother does not accept this.  She failed to comply with the relevant interim orders notwithstanding the Full Court dismissing her appeals and leave to appeal those decisions was refused by the High Court.  The mother came to the final hearing in December last year, having been found to have contravened relevant Court orders without reasonable excuse.  The Court heard the matter on a final basis over four days last December and ultimately the Court was only able to make one final order, being paragraph 2:

   2. On or before 5 pm on 25 January 2018 the parties do all acts and things to cause a psychologist to inform the child, [C], also known as [C], born … 2008 (the child) of his biological heritage.

2. And I will note at this stage that paragraph 11 stated:

   In the event that FACS fail to intervene in these proceedings, within seven (7) days of receiving this notification, and subject to compliance with paragraph 2 herein, the Independent Children's Lawyer make arrangements for the child to be told of his biological heritage by Ms A of The Family Psychologists and for the purposes of facilitating this order:

   a. The mother do all acts and things and facilitate the delivery of the child to all appointments with Ms A as directed by Ms A;

   b. The mother is encouraged to attend all appointments that Ms A has with the child or to arrange for a suitable adult known to the child to be present; and

   c. The father pay all costs associated with the appointments with Ms A by making such payments no later than 48 hours before the appointment.

3. The Court’s inability to make any further final orders was largely due to the mother’s failure to comply with the interim orders and facilitate the process the Court determined many years ago for the child to be informed of his biological heritage.  An opportunity was extended to the mother to do so in January this year and she chose not to do so.  Her appeal against those orders was dismissed by the Full Court in April this year.  Shortly after the dismissal of the mother’s appeal the matter came back before me for further orders and, indeed, I made further orders that would facilitate the mother causing [C] to be informed of his biological heritage. 

4. The mother failed to comply with those orders notwithstanding the Court pointing out to her at the time those orders were made, the serious consequences that could follow for noncompliance given that she has already been found to have contravened relevant Court orders.  The Court is therefore satisfied and finds that the mother is unlikely to ever comply with a relevant Court order unless a more serious sanction is applied.  Indeed, in this case I am satisfied and find that the mother has behaved in a way that has demonstrated a serious disregard of her obligations under the relevant orders.

5. It is appropriate, therefore, for the Court to deal with the sanctions before it as a breach pursuant to subdivision F of Division 13A of the Act. Before I do so I will consider the issue of whether changes should be made to the relevant primary orders. As stated the ICL proposed two alternative changes to the primary orders. The Court has considered the relevant proposal in light of the evidence and the Court agrees with the ICL’s alternate proposal which is as follows:

   (1)     The father is authorised to collect [C], also known as [C], born … 2008, from B School for the purposes of compliance with paragraphs 2 and 3 below.

   (2)    The father is to deliver the child to Ms A immediately after collecting the child from B School and return the child to B School immediately after the conclusion of the child’s meeting with Ms A.

   (3)     That the child is to be told of his biological heritage by Ms A and the father shall pay all costs associated with the appointments with Ms A by making such appointments no later than 48 hours before the appointments.

6. As stated the Court agrees that such variations to the primary orders are appropriate.  In addition, the Court finds that those orders should be supplemented by the following orders.  Firstly, that the ICL is to provide a copy of these orders to the relevant school, B School and, secondly, the ICL is to advise the father and the school of the relevant date for the child to attend upon Ms A, and for the abundance of clarity the order is not directing the ICL to advise the mother.

7. I also find it necessary to consider whether some variation should be made to the primary order relevant to citizenship.  That relevant order being paragraph 7 of the orders that I made on 21 December 2017:

   On or before 5 pm on 25 January 2018 the mother and father do all acts and things and sign all documents to commence the process for [C], also known as [C] and [C], born … 2008, to obtain Australian citizenship.

8. I am satisfied that that order should be varied as part of this decision today and I will direct the parties to comply with the order made.  Within seven days the father is to cause the necessary forms to, again, be sent to the mother for completion and the mother will then be under an obligation to return those to the father within a further seven days and the father will thereafter be under an obligation to lodge the necessary paperwork to commence the process for [C] to become an Australian citizen and the order will be supplemented that in the event that the Australian government seeks further documents to be signed and executed by either of the parties and both parties are under a positive obligation to sign those documents and have the father return them to the Australian government.

9. I now move to the sanctions component arising from the Court’s decision. 

10. Firstly, count one.  In respect of count one being that the Respondent mother without reasonable excuse did contravene order 6 of the orders made by the Federal Circuit Court of Australia on 1 August 2016 by failing to attend an appointment with Ms B on 5 August 2016, the Court imposes a sentence of imprisonment for one month and I find beyond reasonable doubt that the grounds for the making of this order exists.

11. In respect of count two, being that the Respondent mother did without reasonable excuse contravene order 6 of the orders made by the Federal Circuit Court of Australia on 1 August 2016 by failing to attend an appointment with Ms B on 10 August 2016, the Court imposes a sentence of imprisonment for one month to be served concurrently and I find beyond reasonable doubt that the grounds for the making of this order exist. 

12. In respect of count three, that the Respondent mother did without reasonable excuse contravene order 2 made by the Federal Circuit Court of Australia on 14 December 2016 by advising the ICL on 23 December 2016 that she will refuse to attend upon the psychologist nominated by the ICL, namely Ms A of the Family Psychologists, the Court imposes a sentence of imprisonment for one month to be served concurrently and the Court finds beyond reasonable doubt that grounds for the making of this order exist. 

13. In respect of count 4, being that the mother without reasonable excuse did contravene orders 11(a) and 11(b) of the orders made 21 December 2017 by failing to attend an appointment and deliver [C], born 2008, also known as [C] (“the child”), to attend an appointment with Ms A on 24 January 2018, the Court imposes a sentence of imprisonment for one month to be served consecutively.  I find beyond reasonable doubt that the grounds for the making of this order exist.

14. In respect of count 5, being that the Respondent mother without reasonable excuse did contravene order 7 of the orders made 21 December 2017 on 9 January 2018 by failing to provide and sign documents to commence the process for the child to obtain Australian citizenship, the Court imposes a sentence of imprisonment for one month to be served concurrently.  I find beyond reasonable doubt that the grounds for the making of this order exist.

1. And, lastly, in respect of count 6, the Respondent mother without reasonable excuse did contravene order 4 of the orders made on 9 April 2018 by failing to deliver the child to Child Dispute Services for the said child to be told of his biological heritage by Ms A, the Court imposes a sentence of imprisonment for one month to be served consecutively.  I find beyond reasonable doubt that the making of these orders exist. 

2. For clarity, the length of the total sentences imposed by the Court today is three months.  In this case I am persuaded, however, to wholly suspend those sentences for a period of two years from today on condition that the mother comply with all Court orders, and does all things necessary to give effect to the revised orders of the Court that it has made today in respect of doing all acts and things to cause a psychologist to inform [C] of his biological father.  In the event that the mother fails to comply with orders of this Court over the next two years a warrant for commitment will be issued to cause the mother to complete the imprisonment sentence. 

3. I will now deal with costs and expenses. 

4. Firstly, the father:  I note that the father seeks his legal costs arising from the decision of Judge Sexton, and the expenses thrown away from the mother’s failure to facilitate the child attending upon Ms A.  In respect of his legal costs I note that Judge Sexton dealt with this issue in her decision released on 18 October last year.  Unfortunately for the father her Honour was not persuaded to make an order for costs. 

5. Consequently, as that issue has been determined it would not be appropriate for this Court to revisit that decision.  In respect of Ms A’s costs I am satisfied and find that the mother should reimburse the father for the costs that were thrown away by her non-performance of the order.  The mother will therefore be ordered to pay the father the sum of $780.  And I will allow her three months in which to pay that sum.

6. Next, I will deal with the ICL’s costs.  As stated, the ICL seeks costs in the sum of $2,350.  Pursuant to regulation 21.02 of the Federal Circuit Court Rules 2001 this Court does have the power to make a costs order at any stage of the proceedings. In family law matters the Court must also consider section 117(1) which states the principle that each party should pay their own costs. However, the issue of ICL is also dealt with in section 117. The exception, of course, is contained in section 117(2), being that if the Court finds there are circumstances to justify departure from the principle it can do so provided it considers section 117(2A).

7. Section 117(2A) of the Act states:

   In considering what order, if any, should be made under subsection (2), the Court will have regard to:

   (a)     The financial circumstances of each of the parties to the proceedings;

   (b)     Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)     The conduct of the parties to the proceedings in relation to the proceedings, including - without limiting the generality of the foregoing - the conduct of the parties in relation to the pleadings, particulars, discovery, inspection, directions to answer questions, admission of the facts, production of documents and similar matters;

   (d)     Whether the proceedings were necessitated by a failure of a party to the proceedings to comply with the previous orders of the Court;

   (e)    Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)      Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)     Any such other matters as the Court considers relevant.

8. If the Court is satisfied that a costs order should be made or is appropriate then it has to determine the quantum.  In this case the Court is satisfied and finds that a costs order in favour of the ICL against the mother is appropriate.  Consequently, an order to that effect will be made.  The Court further finds that the sum sought being $2,350 is reasonable in all the circumstances and that will be the quantum of the costs ordered.  The mother will have six months in which to pay the ICL’s costs.

9. There will now be orders of the Court to reflect this decision. 

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Monahan

Date: 8 June 2018