Mother ordered to undertake post-separation parenting program and pay fathers costs due to contravention.

Daymond & Joslyn [2021] FedCFamC1F 2 (1 September 2021)

The father filed a Contravention Application alleging that the mother contravened interim parenting orders by not facilitating the children to spend time with him.  The mother acknowledges the contravention and accepts it was without reasonable excuse.  The Court, in deciding whether or not to grant the father's application, took into consideration the appropriate penalty and the fact that the mother was forewarned of contravention and was put on notice by the father of his opposition.

Facts:

On 12 February 2021, Rees J made the interim orders by consent of the parties which provide that the children of the parties spend supervised time with the father.  All such supervised time be facilitated by B Contact Service or any other facilitator as agreed by the parties and the Independent Children's Lawyer.  

The father filed a Contravention Application alleging that Ms Daymond (“the mother”) has contravened Orders made by this Court on 12 February 2021, in respect to the two children of the parties’ relationship.  The orders made by Rees J on 12 February 2021 (“the interim orders”) were made by consent of the parties, and provided for the father to spend six (6) hours every Sunday with the children, with that time to be supervised by a professional supervision service.  Prior to the hearing of the Application, the mother had agreed to provide for the children to spend additional time with the father, to make up for the time not spent by reason of her contraventions.  The mother has also agreed to pay the father’s costs of this Application in a fixed sum amount.

The father alleges that the mother “without reasonable excuse refused to allow the [father] to spend time with the children on 20 June 2021 at 10.00 am and on 27 June 2021 at 10.00 am again, in contravention of order 1.1 of the interim orders.  The mother admits both contraventions.  The mother's solicitors advised that the mother has made arrangements to travel to the Gold Coast with the children during the upcoming Term 2 school holidays, thus, why it was previously foreshadowed that they would not be available on the weekends of 19/20 June 2021 and 26/27 June 2021.  The mother contends that, in circumstances where she had offered make-up time to the father, it was unreasonable for the father to have filed the contravention application.  

The father further contends that, in the circumstances of this matter, it is appropriate that the mother be ordered to pay the father’s costs of the Application, assessed on a party/party basis.

Issue:

Whether or not the Contravention Application should be granted. 

Applicable law:

Family Law Act 1975 (Cth) s 70NEB(1) - sets out the powers of the Court, as follows:

(a) make an order directing:

(i) the person who committed the current contravention; or
(ii) that person and another specified person;

to attend a post‑separation parenting program;
(b) if the current contravention is a contravention of a parenting order in relation to a child—make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)—impose a fine not exceeding 10 penalty units on the person;
(e) if:

(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g) 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.

Family Law Act 1975 (Cth) s 70NFA - applies in circumstances where the party who has contravened a relevant order of the Court “behaved in a way that showed serious disregard of his or her obligations under the primary order”.

McClintock & Levier[2009] FamCAFC 62; (2009) FLC 93-401 - summarised the relevant principles which the Court is to consider, in respect to the imposition of a penalty arising from a contravention of the Act.

R v Ellis (1986) 6 NSWLR 603 -  Street CJ said that the leniency that follows a confession of guilt in the form of a plea of guilty is a well-recognised part of the body of principles that cover sentencing.

Analysis:

The father attests that he adopted that course of action in the context where the contraventions which occurred on 20 and 27 June 2021, were not the first contraventions by the mother of the interim orders that have occurred.  The father also gave notice to the mother that he expects that she would not unilaterally vary the time which the children spend with the father, but, rather, that she seek his consent prior to any variation to their time with their father.  Despite that chain of correspondence, the mother did take the children on a holiday to the Gold Coast and, consequently, she did not facilitate the children spending time with the father on 20 June 2021 and 27 June 2021.

The mother was informed by the solicitors for the father of the nature of her obligations under court orders, to ensure that “she is better informed as to her position regarding the Orders and her compliance with them”.  However, the mother nonetheless proceeded to take the children on a holiday to the Gold Coast, which necessarily meant that she did not comply with her obligations, pursuant to the interim orders, during that relevant period.  The mother agreed to and facilitated the children having make up time with the father, and, further, she has agreed to pay the costs incurred by the father in commencing this action, fixed in a lump sum amount.

Conclusion:

The Court determined not to require the mother to enter into a bond.  Still, the Court is satisfied that it is appropriate for the mother to be better informed, in respect to her obligations under court orders, by attending an appropriate post-separation parenting program.  The Court ordered the mother to enroll in a post-separation parenting program, as defined in section 4(1) of the Family Law Act 1975 within 28 days.  For the purpose of Order 1 herein, the mother may attend the post-separation parenting program electronically, by utilising online technology.  By consent, within 28 days, the mother is to pay the father’s costs of this Contravention Application, fixed in the sum of $1,800.