Mother Seeks Greater Penalty Against Father for Contravention Orders

Sykes & Sykes [2021] FedCFamC1A 58 (11 November 2021)

Cross-applications for contravention were made by the parties.  The Court imposed bonds for good behaviour and compliance with orders for a period of 12 months without security and without surety.  The mother appealed against contravention orders alleging that the father deserved a greater penalty.  The Court, in resolving this dispute, recounted the deliberations between the mother's counsel and the primary judge. 

Facts:

The parties are the parents of the child X aged 15 years and have been engaged in parenting litigation since 2009 when the child was two years and two months old.  The parties began living together in February 2005, were married in December 2005 and separated in 2008.  After the parties separated the child remained with the mother.  Proceedings in relation to the child commenced very shortly after separation with an application filed in February 2009. 

In 2010 orders were made by consent that the child live with the mother and spend time with the father.  Those orders included an order restraining the mother from moving the child’s residence away from the Sydney metropolitan area.  In January 2013 the mother and the child moved to Region J area outside of Sydney.  The father sought and obtained orders requiring the mother to return the child to Sydney, which she did and from then the child has lived with the father and spent time with the mother.

On 27 November 2013, final parenting orders were made which resulted in the child living with the father and he having sole parental responsibility for long term decisions for her.  The orders provided for the child to spend time with the mother on alternate weekends during school time and for one half of the school holidays.  On 8 January 2019 the mother commenced proceedings seeking final parenting orders that the child live with her and she has sole parental responsibility.  She sought orders that the child spend alternate weekends during the school terms with the mother and father. 

On 8 April 2019 the Court ordered that the child should spend time with the Applicant mother on 2 May 2019 for the purposes of the child attending the graduation of the child’s sister.  On 19 August 2019 the father filed a contravention application alleging that the mother contravened Order 3 made 8 April 2019 by failing to return the child to school in the morning of Friday 3 May 2019. 

On 18 June 2020 the mother filed a contravention application asserting the father contravened Order 6 made on 27 November 2013 in that on 27 March 2020 he failed, without reasonable excuse, to bring the child to the changeover location and as a result prevented the child from spending time with the mother.

The mother admitted that she had contravened the 8 April 2019 order but asserted that because the child was upset, time was lost and it became untenable for her to be returned to school in time for class and, since it was a weekend on which the child was otherwise spending time with her, took her to her house for the weekend.  The primary judge concluded that the mother did not have a reasonable excuse for failing to comply with the order so found the contravention proved.  The primary judge required the mother to enter into a bond for twelve months without the need for a surety pursuant to s 70NEC of the Act.  The primary judge also found that the father contravened the order since the father knew the child was concerned about going but took no steps to address her concerns about her ability to return home. 

The primary judge in considering the penalty found the father’s conduct of a more serious nature than that of the mother in that it involved the child losing time with her mother and thus made an order for additional time between the mother and the child as compensation for the time lost.  The mother appeals against the leniency of the penalty imposed on the father in relation to his contravention of the order of 13 November 2013. 

Issue:

Whether or not there has been a sufficient change in circumstances since the final parenting order was made in 2013 so that it was in the best interests of the child that the parenting orders be reconsidered. 

Applicable law:

Family Law Act 1975 (Cth) s 70NAC - provides that a person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order--he or she has:

(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order

House v The King (1936) 55 CLR 499; Cross-applications for contravention - where the primary judge’s determination of penalty was, quintessentially, an exercise of his discretion and will not be the subject of successful appeal unless the mother can establish one of the well know errors set out herein. 

Keehan v Keehan (2019) 60 Fam LR 276; [2019] FamCAFC 250 - held that Div 13A reflects the legislative intention that Div 13A is directed only to enforcing compliance with operative parenting orders by those individuals bound by the subject orders. 

Analysis:

The mother contended that the primary judge was wrong in finding that the father had been found in contravention of an order once before when she said that on 28 June 2011, the father was found to have contravened the orders on four separate occasions.  It was argued then that the primary judge was in error when he considered the father’s past history of contraventions.  Although no formal application was filed, the mother’s submissions sought the introduction of further evidence on the point.  Both the mother and father were found to have contravened orders of 2010 and in respect of which no penalty was imposed.  

The mother contends that the penalty imposed on the father should have been more severe because he did not concede the breach, his contravention deprived the child of time with the mother and she pointed to the primary judge’s criticism of the father’s failure to attend to his obligations as the custodial parent in ensuring the orders were obeyed.  However, when asked by the primary judge as to what penalty would be appropriate to be imposed on the father in respect of the contravention, counsel for the mother said that if the primary judge found the father’s contravention to be in the less serious range, the counsel for the mother seeks an imposition of a penalty that will protect her relationship – help to protect her relationship with [the child] in the future, and she’s seeking a bond.

The primary judge asked "so she seeks bond pursuant to section 70NEC and 15 compensatory time, and does she put a proposal in relation to compensatory time?"  The counsel for the mother answered affirmatively.  They were the orders the primary judge made.  The mother cannot now complain that the primary judge made the very orders sought by her counsel.

Conclusion:

The appeal EAA 60 of 2021 is dismissed.  No cost order will be made.