FAMILY COURT OF AUSTRALIA

HUGH & SAWER	[2010] FamCA 290	

FAMILY LAW – CHILDREN – Contravention application – application of Division 13A Part VII Subdivision F – serious disregard – penalty  

FAMILY LAW – CHILDREN – Contravention application – variation of parenting orders 	

Family Law Act 1975 (Cth) ss 70NEA, 70NEB, 70NFB, 117(2A).	

B and B [1988] FamCA 115
Croser v Atrill (1990) FLC 92-100
Cummings v Cummings (1976) FLC 90-100
Fauna Holdings Pty Ltd and McGillivray & Ors v Mitchell (No 2) (2000) FLC 93-053)
G v G (1981) FLC 91-042
LAC and TRF and LKL [2005] FamCA 158
McClintock v Levier [2009] FamCAFC 62	

APPLICANT:	Ms Hugh 	

RESPONDENT:	Mr Sawer	

Independent children’s lawyer:	David Walker & Co	

FILE NUMBER:	LNC	511	of	2008	

DATE DELIVERED:	17 March 2010	

PLACE DELIVERED:	Hobart	

PLACE HEARD:	Hobart	

JUDGMENT OF:	Bennett J	

HEARING DATE:	15, 16 and 17 March 2010	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Lewis	

SOLICITOR FOR THE APPLICANT:	Temple-Smith Partners	

COUNSEL FOR THE RESPONDENT:	Mr Dixon CSC appeared on 15 and 16 March 2010.
Mr Sawer appeared in person on 17 March. 	

SOLICiTOR FOR THE RESPONDENT:	15 and 16 March – Legal Solutions	

INDEPENDENT CHILDREN’S LAWYER	David Walker & Co	

Orders
1.	That the respondent husband pay the applicant wife’s costs of and incidental to the contravention of parenting orders proceedings fixed in the sum of $6,276.00.
2.	That the reservation of costs in favour of the father in relation to the financial contravention application of the wife filed 20 January 2010 be and is hereby discharged.
3.	That in relation to Counts 4, 5, 6, 7, 8, 9, 10, 11, 13, 15 and 16 of the Contravention Application filed by the mother in relation to parenting orders filed on 20 January 2009 I impose a fine on the respondent husband in the sum of $3,000.00 to be paid on or before 17 May 2010. 

IT IS FURTHER ORDERED UNTIL FURTHER ORDER:
4.	That all previous parenting orders be and are hereby discharged.
5.	That the mother have sole parental responsibility for the children E born … January 1999 and H born … January 1999 (“the children”).
6.	That the children live with the mother.
7.	That the father be prohibited by himself his servants and agents from communicating with the children or by placing any call or message to a mobile telephone service in the possession of the children or either of them.
8.	That pursuant to Section 68B of the Family Law Act 1975 the father and/or Ms B be and are hereby prohibited from:-
a)	contacting the mother save as may be provided in any subsequent parenting order of this Court;
b)	contacting the children E born … January 1999 and H born … January 1999 or either of them save as may be provided in any subsequent parenting order of this Court;
c)	approaching at or within 200 metres of the mother’s residence at R, Tasmania save as may be provided in any subsequent parenting order of this Court or with the mother’s prior written consent;
d)	approaching at or within 200 metres of the children’s school, being L School; and
e)	from attending at or approaching within 100 metres of any venue at which L School or the V Basketball Club, at which the children H or E (or either of them) play, have a function or conduct or participate in a sporting activity; and
This order is made for the personal protection of the mother and the children and has attached to it a power of arrest pursuant to Section 68C of the Family Law Act 1975 so that if a police officer believes, on reasonable grounds, that the father and/or Ms B has breached the injunction by:-
i)	causing or threatening to cause bodily harm to a protected person; or
ii)	harassing, molesting or stalking that person;
the police officer may arrest that person without warrant.

IT IS REQUESTED:
9.	That the independent children’s lawyer explain the outcome of the contravention proceedings to the children and the operation of this order to the children and to J in terms likely to be understood by all of them.

IT IS DIRECTED:
10.	That the independent children’s lawyer make such enquiries as is necessary to furnish to the mother and the father and to Ms B details of the opportunities and availabilities for the children J, H, E and C to spend time together in a contact centre between now and the adjourned date.

IT IS FURTHER ORDERED:
11.	That liberty is reserved to the parties to apply to me for any orders sought by consent to be made in Chambers which will regularise and formalise any arrangement that they may be able to agree to in relation to the four children spending time with each other between now and the adjourned date.
12.	That the issue of variation of parenting orders as sought by the mother and as sought by the father be adjourned to the same date and time as the proceedings between the paternal grandparents and the mother in relation to the children E and H.
13.	That any application for the appointment of a next friend for the husband be made on notice to each other party and so that in sufficient time it can be dealt with prior to the resumption of the parenting proceedings at the end of May 2010.
14.	That the reasons for judgment this day be transcribed and when transcribed copies be made available to the parties and to the Director of Child Dispute Services for this region of the court for distribution to Ms N.
15.	That the independent children’s lawyer be responsible for service of this Order on the Proper Officer of:-
a)	L School;
b)	The V Basketball Club; and
c)	Any contact centre in which the parents apply to participate.
16.	That the independent children’s lawyer do all acts and things necessary to inform the father and Ms B of the roster for the girls participation in V Basketball Club activities.
17.	That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

Family Court of Australia at HOBART	

FILE NUMBER: 	LNC 511 of 2008

MS HUGH 	
Applicant

And

MR SAWER	
Respondent

AND

INDPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT
ex tempore
1.	By application filed on 20 January 2010, the mother alleged that the father had on 16 separate counts contravened orders of this court.  One count was withdrawn at the commencement of the hearing and a further four counts were withdrawn prior to the commencement of the father’s case.  The father has admitted the remaining 11 counts without reasonable excuse.  These reasons relate to the penalties in relation to the 11 counts admitted by the father.  
2.	All counts pertain to paragraph 7 of the orders made on 12 March 2009 which provides that:
Until further order pursuant to section 68B of the Family Law Act, the father be prohibited from contacting the mother and the children, or any of them, or from approaching at or within 200 metres of the mother’s residence at [R] or the children’s schools.  AND IT IS NOTED that this order is made for the personal protection of the mother and the children, and has attached to it a power of arrest pursuant to section 68C of the Act.
3.	In addition to the affidavit evidence, the mother gave oral evidence and was cross examined by senior counsel who appeared on behalf of the father.  
4.	The first day of the proceedings was Monday 15 March 2010.  The father was represented by Mr Dixon, senior counsel, the mother was represented by Mr Lewis of counsel and the independent children’s lawyer, Mr Walker, attended court but made it clear he did not seek to be heard on anything other than on a variation of parenting orders which had been foreshadowed by senior counsel for the father at an earlier mention date.
5.	After a full day in Court and just as I was about to sentence the father, it was ascertained that the father had left court and could not be located. I adjourned the matter to 9 a.m. on 16 March 2010.  This was the course suggested by senior counsel representing the father and not opposed by any other party.
6.	At 9 am 16 March 2010 the father was not at court.  His counsel made an application for the matter to be stood down until the afternoon.  He informed the court, from the bar table, that his client was seeking medical attention having had a “bad night” and having sustained bad bruising in a high speed motor car collision the previous weekend in Adelaide.  The court was informed that a car driven by the father collided with a brick wall at the speed of 160 kilometres an hour.  There was no evidence to this effect.  I made an order for the father to file and serve any medical evidence upon which he sought to rely to explain his absence from court yesterday.  
7.	Today, 17 March 2010, the father attends court.  He says that he has x-rays and a receipt for having attended upon a doctor. Neither of those constitutes evidence of his alleged incapacity to attend court. However, in the circumstances, the applicant mother and the independent children’s lawyer pressed no claim for the costs of yesterday.
8.	The matter has proceeded today.  The father sought leave to address the court on the issue of mitigation of some of the counts previously admitted.  He now represents himself and I considered it appropriate to hear what he had to say.  That has taken approximately one and a half hours and the father’s submissions are in addition to the thorough submissions that were made on his behalf by senior counsel yesterday.  Otherwise, the father gave no evidence in these proceedings, but has relied on certain affidavit evidence of the independent children’s lawyer.

Do the penalties fall under Division 13A Part VII Subdivision E or Subdivision F?
9.	The first issue to be addressed is whether the penalties to be imposed fall to be determined under Division 13A Part VII Subdivision E of the Family Law Act 1975 (Cth) which deals with less serious contraventions, as is contended by the father.  On the other hand, the mother contends that Division 13A Part VII Subdivision F, which deals with more serious contraventions, should apply.
10.	The relevant sentencing options under Subdivision E are set out in section 70NEB(1).  Relevantly, those options include requiring attendance of one or both parties at a post separation parenting program, requiring the respondent to enter into a bond and ordering the respondent to pay some or all of the costs of the applicant.
11.	It is agreed that the father is not a person, within the meaning of section 70NEA(2), about whom a court has previously made an order in respect of a contravention.  As such, Subdivision E could apply.  However, s 70NEA(4) provides that Subdivision E does not apply if the court is satisfied that a person who contravened the primary order has behaved in a way that showed serious disregard for his or her obligations.  
12.	If the court is satisfied that a person has demonstrated a ‘serious disregard’, Subdivision F applies.  The relevant sentencing options are set out in section 70NFB(1) and (2).  Pursuant to section 70NFB(1), the court must take one of the following courses by way of penalty:
a)	order that the respondent pay the applicant’s costs, unless it would not be in the best interests of the children concerned to make that order;
b)	if the court orders costs, the court must consider imposing such further penalty from the further sentencing options in section 70NFB(2) as it considers most appropriate;
c)	if the court does not order costs, it must impose at least one penalty from the further sentencing options in section 70NFB(2) and that penalty must be one that it considers to be the most appropriate.
13.	Relevantly, the sentencing options under s 70NFB(2) include requiring the respondent to enter into a bond, imposing a fine of not more than 60 penalty units and imposing a sentence of imprisonment.  A penalty unit is $120 which makes the fine in relation to each count $7200 as a maximum.  I note that the reference to an order for costs includes orders for all, part or a contribution towards the applicant’s costs.  
14.	I have indicated that I will not impose or require the respondent to enter into a bond if he does not wish to do so.  Submissions which I received on Monday 15 March 2010 were, with respect, somewhat confused in relation to the bond, but ultimately no offer was made by or on behalf of the father that he would enter into a bond.  Furthermore, I indicated at an early point that I was not then considering a period of incarceration in respect of the contraventions.  In spite of the extra submissions made by the father today in mitigation of his contraventions, I remain of the view that it is too early to consider incarceration as the most appropriate penalty. 
15.	What constitutes a “serious disregard” in the terms of s 70NEA(4) was discussed in the case of Elspeth and Peter, Mark and Peter, and John and Peter [2007] FamCA 655 (‘Elspeth and Peter’).  The Full Court, comprising Faulks DCJ, Kaye and Penny JJ reviewed earlier decisions and certain explanatory memoranda from which I discern the following principles arise:
a)	what amounts to a serious disregard will depend on the circumstances of the case and the terms of the order;
b)	serious disregard is a description of a degree of intent that is something less than the intent required for a contumacious breach, but something more than the intent present in a finding of a contravention;
c)	serious disregard has to be seen as a question of proportion and a question of degree, and which I take to require some examination of whether it was premeditated, impromptu or minor in its nature;
d)	serious disregard may involve no intention on the part of the respondent to support the primary order and/or an intention to circumvent the provisions of the primary order.
16.	At paragraph 61 of Elspeth and Peter their Honours observed:
The theme that emerges from an examination of several decisions... is that “serious disregard” tends to be found in cases of deliberate, premeditated noncompliance with orders and continued and protracted breach.
17.	At paragraph 66 the Full Court observed:
What seems to be a common thread is that the more serious sanction should only be invoked if there is a persistent disregard of an obligation for a clearly wilful and deliberate attempt to resist carrying out an order.  Mere passivity on the first breach does not appear to be sufficient to attract the more stringent sanctions set out under Subdivision F.
18.	In the case of Elspeth and Peter, the court was dealing with passivity in the context of an obligation on a primary caring parent to promote contact and to promote time with the other parent.  The principles enunciated by the Full Court are binding on me.  
19.	I turn now to some brief examination of the contraventions themselves.

The Counts
20.	In Count 4 the father admitted that on 3 September 2009 at 11.27 am, he contacted the applicant by email and did so without reasonable excuse.  The email is found at exhibit B to the applicant’s affidavit sworn on 15 January 2010.  It records the length of time that the father had not seen the girls, nor the girls their sister, C; some comment about J; a request for the mother to facilitate time between J, C and the girls in the care of the mother; a statement by the father that “I write this letter in the hope that we may look forward rather than back” and that he would appreciate a “reply by return email.”
21.	The mother was cross-examined quite extensively on this communication.  It was put to her that it evinced a conciliatory approach.  She wept as she responded.  She said that she cannot put any faith in anything that the father puts in writing because what he does put in writing, he does so in order to rely upon it in court.  She did not consider it to be a genuine or conciliatory approach and she was impressed by the fact that it made a demand upon her for a reply, which reply she was not prepared to give.
22.	In discussion between myself and senior counsel, the definition of “return email” was explored.  It seems to me that return email is the equivalent of return post, that is, next post or an immediate reply.  Senior counsel for the father said that it denoted that the reply should be by email and that no pressure of time can be inferred.  The father, in his own submissions today, elaborated. He submitted that he did not mean to require an immediate response.  He thought that a return email would be most convenient to the mother because it was quick and free.  He referred to the pleasant signing off of “thank you, sincerely, [T Sawer]” and says that it was not his intention at the time to offend her.
23.	I have regard to the fact that the father says that he did not intend to press for an immediate reply.  However, I accept that the mother was reasonable to interpret the email as she did. 
24.	The father submitted that he wrote the letter to the mother because he had written a multitude of letters to her lawyer and to the independent children’s lawyer and had received no reply.  I accept that he had approximately six such letters in court with him. I note, however, that when the mother was cross-examined about this email none of those correspondences were put to her.  It was not put to her that there had been requests not replied to prior to this email being sent.  The father says that he wrote the email in desperation.  I note that in relation to this matter the father said, “I did not mean to offend. I am sorry.”  Those comments are significant because they are the sole expression of remorse in this contravention proceeding.  I accept this expression of remorse.
25.	Count 5 was constituted by an email transmission, sent at 10.52 am on 4 September 2009 by the father to the mother less than 24 hours following the email in count 4.  Whereas the father submitted in relation to count 4 that he did not expect an immediate reply to the previous email, he commences this communication with, “I’m disappointed that you did not see fit to answer my email of yesterday.”  He advises the mother that he has registered the girls in a basketball clinic, which the mother gave evidence she had never asked or consented him to do. In the last paragraph, he seeks to require the mother to contact him if she does not propose to make the girls available to attend the basketball clinic.
26.	The father said that there is “No way I would have sent the email if she’d asked me not to.”  However, it is not up to the mother nor to those who advise her to remind the father that he is bound by an injunction of the court not to contact her. I do not accept the father’s position that in contacting the mother repeatedly he was waiting for some message from her or those who advise her that she preferred him not to do so.  On 12 March 2009 she had obtained an order in the strongest possible terms prohibiting this conduct.  
27.	Count 6 involves an email sent by the father on 16 September 2009 at 2.17 pm, in which the father advised the mother of details of the booking for the girls in the basketball clinic that she had not asked him to make. It points out that the basketball clinic was to commence at 9.30 am the following day and asked her to make the girls available for it.  
28.	Count 7 involves an email sent just over one hour later on 16 September 2009 at 3:23 pm expressing the father’s disappointment at her failure to respond; his assertion that the mother was “putting yourself before the wishes and best interests of the girls”; and, advising that the places, which she had never asked him to reserve, would be cancelled.  Neither the father nor his counsel addressed me on this email.  
29.	Count 8 involves an email sent on 1 December 2009 at 4.12 pm by the father to the mother’s solicitor which was copied to the mother. According to her affidavit, the mother received the email. Amongst other things, it accuses the mother’s lawyer of having fraudulently appropriated legal aid funds and of refusing to negotiate or mediate with the father. It requests “for one last time” that they convene a conference to allow substantial contact between himself and the girls over the Christmas holidays and ongoing. It stated that, in the event that they did not voluntarily withdraw from the proceedings, he would apply to the court to secure their withdrawal.  The father stated that their withdrawal from acting for the mother must last for so long as a police investigation, which he had put in train, took to resolve.
30.	The father referred to certain evidence which he had in relation to misappropriation and communications presumably between himself, the Attorney General’s Office and the Legal Professional Board.  In the mother’s submissions it was put that this communication was not only in breach of the order but a communication designed to drive a wedge between the mother and those upon whom she relied for legal representation in difficult parenting proceedings.  No submission to the contrary was made by senior counsel for the father or the father.
31.	Count 9 involved a three page long email sent on 2 December 2009 at 11.43 am by the father to the mother.  It states “if the police haven’t spoken to you in the last few days they will have done within the next week and unless there is some miraculous thing that we don’t know about you will get gaol time.”  The father says regarding J:
I’m not prepared to fight you in court while you use the low life, if that is who you choose to deal with, Walker Turner and Lewis, however, I assure you that whilst I am not seeing my family I am now directing much energy into making sure that some justice is done in that regard which will result in my children and I being able to spend quality time together.
He refers to costs liabilities against the mother’s father and taxation issues that may be raised against them.  
32.	Count 10 involved an email sent on 15 December 2009 at 11.16 pm by the father to the mother and to a number of other people, four of whom have a legal aid email address, one of whom has an address for the parliament of Tasmania, and another address is my associate’s in chambers in Melbourne.  In it, the father asserts that the police now have documentation that the father believes will “prove the misappropriation of legal funds!”  It attaches a letter from the Acting Commander, Northern District, Tasmania Police, which refers to the criminal complaint lodged by the father.
33.	The father again submitted that there was no letter of complaint asking him to desist from contacting the mother. I repeat that is not necessary in circumstances when there is an order prohibiting him from doing so.  Otherwise I found his submission to be rambling, to digress, and to contain quite heavy themes of self-justification, victimisation and persecution.  It did not contain any of the remorse which he had mentioned in relation to count 4.
34.	Count 11 involved a text message to the mother sent on 8 September 2009 at 7.33 pm in the following terms:  “Don’t be a money grabbing loser all ur life.  Try to put ur kids first 4 once in ur life.  By hurting [J] u hurt the girls.  U owe them all an apology.”  
35.	Count 13 involved a voice message left by the father on the mother’s mobile telephone along the lines of “do yourself a favour and take a phone call from your son.”  The mother explains at paragraphs 24 to 28 of her affidavit the circumstances in which she has difficulty in communicating with J by telephone including that the calls are made by J from the office of the father’s partner, Miss B, who intermittently acts for the father in proceedings in this court.  
36.	The father said that he left the message because J was getting angry at having received no contact from the mother;  that in his perception J would believe he had been ignored or dumped by the mother, and that J was concerned that if she did not take his calls he would abandon her. Initially the father said that this communication was prior to the mother finally taking a call from J within 24 hours.  Finally, he said “he believes” that this message might have led to the mother taking a call within 24 hours.  I note that none of these matters were put to the mother when she was cross-examined by senior counsel for the father.  I do not consider that it is in the interests of justice to further prolong the case by repeatedly re-opening it.  It is sufficient to note that there was an order prohibiting the father from contacting the mother and that he left her this voice message. If the father had wanted to set up a formal and secure means of contact between J, who is a child currently in his care, and the mother he could have recourse to do so. Moreover, J could have recourse to do so.  He has an independent children’s lawyer appointed in these proceedings representing his interests and who is contactable by J.  
37.	Count 15 relates to events which occurred on 25 December 2009.  The primary order prohibits the father from approaching within 200 metres of the mother’s residence at R.  On this occasion J had visited his mother and stayed for Christmas Eve and was having lunch with his mother and older sisters. The mother’s evidence was that prior to arriving, she had told J that she would not be responsible for returning him to the father on Christmas Day.  J said that the father could collect him, to which the mother responded words to the effect of “I don’t want [your father] here.”  The mother’s uncontradicted evidence was that J informed her that he wished to leave at about 1.30 pm on Christmas Day. However, at 1.15 pm on Christmas Day as they were seated at the table eating Christmas lunch, J received a telephone call on his mobile phone, appeared to the mother to become agitated and said that he “had to go” to meet the father on the main road as his father had told him he was on his way down the driveway. The mother’s drive way is in excess of one kilometre in length. Had the father stayed on the main road to meet J he would not have breached the primary order.  
38.	In addressing the court in relation to this count 15, the father referred himself as entitled to accolades for permitting or facilitating J to see his sisters on Christmas day.  He asked the court to remember the spirit of Christmas and stated that he is at a loss to understand how he could have contravened the order.
39.	As indicated, it is clear is that the father did not have to approach any closer than within 200 metres of the mother’s residence.  It is clear that he arrived earlier than the time he had indicated to J and, finally, that he has no insight into the havoc, disruption and distress that he caused on that day which was evident to me from the mother’s evidence.  
40.	The final count is number 16 and involves a text message sent by the father twenty minutes after he approached the mother’s residence on 25 December 2009, saying “what a Merry Christmas, not even letting the girls come out to say hello to their sister after me initiating [J] to come and spend time with you.”  From the particulars of this contravention it would appear that the father’s motivation in coming down the driveway and approaching so close to the mother’s house was not necessarily to reduce the distance that J would have to walk, but to achieve a meeting between the girls and their sister in his presence, which the orders clearly prohibit.
41.	The father's submissions at court today, unfiltered by legal representation, informs me that the father’s perceptions are very different from the reality experienced by the mother.  I accept much of what the father says, however, I also accept the mother's evidence about her distress and the fact that her distress arose out of blatant breaches of orders designed to protect her and the children both physically and emotionally.  

Conclusion on the Contravention Counts
42.	I have regard to the fact that the communications which constitute the 11 counts on which the father is to be sentenced were not impromptu or done on the spur of the moment.  Lack of impulse control does not equate to spontaneity.
43.	I have regard to the fact that the relevant communications were harmful to the mother.   Under cross-examination by senior counsel for the father, her distress was palpable.  It is not for some time that I have observed a witness to be in such anguish.  She described her fear that she was being set up by the father’s superficially conciliatory emails. She described how, daily, she lives with the fear that she will go to collect the girls from school only to find that the father has removed them.  She gave that evidence rationally and forcefully. I note that it was evidence adduced in cross examination. My opportunity to assess the mother give evidence at close quarters was of real benefit to me in this case. 
44.	I am satisfied that the mere presence of a message from the father on her email or on her telephone strikes terror into her because it reminds her that the father will not obey orders of the court, not even the most simple or specific orders such as an injunction not to contact her, and that he will not hesitate to use the children's desire to see each other, or the girls' interest in something such as basketball, in his efforts to circumvent the operation of clear orders.
45.	In cross-examination I observed the mother trying to avoid painting herself as a victim.  I observed her trying to hold back tears, her face trembling until she could not talk and then she started to weep.  She presented as a struggling, vulnerable mother overborne by her powerlessness in the face of the father against whom she perceives safeguards and orders of this court are futile.  I observed the father to squirm in his seat, to have his head bowed for most of the time, and sometimes, in his words, to “roll up in a ball” (although I would not say that it was quite that extent of contortion) and to be upset.
46.	I have regard to the fact that the primary order was an injunction with a power of arrest attached.  It is the severest prohibition against behaviour that this court can make and is expressed clearly enough to be obeyed.  
47.	Based on the foregoing, I am satisfied that within the meaning of section 70NEA(4) the father has behaved in a way that showed a serious disregard for his obligations under the primary order, which prohibited him from contacting the mother and from approaching within 200 metres of her residence. 
48.	I am satisfied that the father has shown a serious disregard in respect of each individual contravention, that is, not just all of the contraventions when viewed cumulatively.  
49.	The objectives of imposing consequential orders for breaches of orders made under the Family Law Act 1975 (Cth) are apparent from a number of authorities.  The purpose is to secure compliance with orders of the court, rather than to punish the contravener (see McClintock v Levier [2009] FamCAFC 62, Cummings v Cummings (1976) FLC 90-100, G v G (1981) FLC 91-042, Croser v Atrill (1990) FLC 92-100 and Fauna Holdings Pty Ltd and McGillivray & Ors v Mitchell (No 2) (2000) FLC 93-053).
50.	Section 70NFB describes the powers of the court imposing consequential orders or sentencing.  They are predicated on a prior determination of a responsibility for costs, so it is appropriate that costs be dealt with now.  
Costs
51.	The independent children's lawyer made no application for costs.  
52.	The mother applied for the father to pay her costs in the sum of $6776 made up in accordance with the scale of costs provided in the Family Law Rules 2004 (Cth), and are as follows:
a)	the short appearance on 9 February 2010 at $600;
b)	the preparation of the contravention application and affidavit in support, eight hours at $192 per hour, at a total $1536;
c)	preparation by way of settling documents, reading and generally, for counsel at five hours at $220 per hour, at a total $1100;
d)	the appearance on 15 March 2010 which comes within a scale of $677 to $1565, but for which he claims $1560;
e)	accommodation in Hobart on the first day of the hearing at $280;
f)	appearance on 17 March 2010 at $1560;
g)	accommodation to be at court today at $140.
53.	Section 117 of the Act contains the general rule that each party to proceedings under the Act shall bear his or her own costs.  Notwithstanding that the court is directed to consider liability for costs in the context of contraventions of orders, it is s 117 which governs the court's discretion in this respect.  The object of s 117 is to ensure that parties are not deterred from bringing or maintaining legitimate applications for fear of incurring intolerable financial burdens if they lose. 
54.	However, the court retains the discretion to make an order for costs if it is of the opinion that there are circumstances that justify that course and it would be just to do so.  In considering whether to make an order the court must have regard to the matters set out in section 117(2A).  The weight to be attached to any of those considerations is wholly discretionary.  While no single factor outranks any other, there is nothing to prevent one or other of the factors from being the sole foundation for a costs order (LAC and TRF and LKL [2005] Fam CA 158).   As Kay J observed in the matter of B and B [1988] FamCA 115:
In many cases there will be an outstanding feature … that makes an order for costs appropriate, a feature which so dominates the scene that it can outweigh any of the other section 1172A considerations.
55.	I take into account the financial circumstances of each of the parties to the proceedings under s 117(2A)(a).  The father says that he has no income and is supported by his partner, Ms B, a lawyer.  He says that he has incurred legal expenses of his own for counsel of some $6300, which excludes two days of appearance by Mr Dixon SC this week.  He did not say that he incurred any lawyer's fees.  His partner has not been his solicitor on the record  but today the father referred to her as something “set up to organise Mr Dixon” because Mr Dixon could not speak to him directly.  I assume from that statement that there are no lawyer's fees. I take into account the financial cost to the father in being represented by senior counsel in this contravention proceeding.
56.	I do not have precise details of the mother's financial situation.  She is in some form of employment.  She has two girls in her care, is married and lives in a slightly remote area in northern Tasmania.  
57.	I am comfortably satisfied however, that neither of these parties have the financial means or resources whereby they can afford these proceedings.  I am satisfied that these proceedings represent a crippling impost on anyone who does have to pay for them.  
58.	I take into account the assistance provided by the Legal Aid Commission of Tasmania under s 117(2A)(b).  The independent children lawyer is funded by legal aid. In these contravention proceedings, I am advised the mother is not in receipt of legal assistance, although if she was that would not lessen any justification for ordering costs in this case.  I take it from what the father has said that he is not in receipt of legal assistance.  
59.	The factor which I find to have overwhelming significance is section 117(2A)(d), which is whether the proceedings were necessitated by the failure of a party to proceedings to comply with the previous orders of the court.  That is clearly the case here and is a compelling justification for an order that the father pay some or all of the costs incurred by the mother.  
60.	I note that s 117(2A)(f) refers to offers made in writing to settle the proceedings.  The father himself has addressed me on a communication sent by him or on his behalf to the mother's practitioners asking what they expected to achieve from having these contravention proceedings run.  In my view, that does not constitute an offer to settle anything.  
61.	Pursuant to s 117(2A)(g),  I find it relevant that the mother filed a 14-page contravention application in relation to property matters at the same time as she filed this contravention application in relation to children. Her affidavit material in support of that application was 22 pages long, including annexures.  It was an incompetent application.  On the first return date, senior counsel for the father referred to the incompetent aspects of the application. Counsel for the mother indicated she would give serious consideration to withdrawing the financial application on the next occasion.  
62.	It was apparent that the father’s then senior counsel had worked on that property contravention application. On Monday of this week, counsel for the father informed me (and it was not disputed) that he had spent one hour considering the matter at $500 an hour, as well as appearing on 9 February 2010 to address the issue of the financial contravention, both at the beginning of his appearance and at the end of his appearance.
63.	I have allowed the applicant’s costs for the appearance of her counsel on 9 February 2010 at $600 in their totality.  It seems to me appropriate to allow a composite fee for Mr Dixon’s consideration of the discrete financial contravention application in conference and the appearance in the sum of $600; I will deduct that from the quantum of costs which were otherwise not disputed.  Counsel for the father conceded that any reduction referable to the failed financial contravention proceedings would extinguish the reservation of costs which I made in that respect on 15 March 2010.  Clearly that is so.
64.	Counsel for the father supported the court fixing the costs to be ordered against the father rather than sending the matter for assessment (taxation). Having regard to the court’s duties to observe some proportionality in proceedings and a quick and fair resolution of matters, I am satisfied that costs are best fixed by the court now rather than being sent for assessment.  It also permits me to know what burden of costs the father will assume in the contravention proceeding which is a relevant matter for sentencing.
65.	Finally, counsel for the father sought a further discount on any costs payable by the father because only 11 of the 16 counts in the child-related contraventions succeeded.  I do not accept that there should be any discount in respect of the five counts which were dismissed or withdrawn. No significant time was wasted on them. I will not allow a discount.
66.	I am satisfied that the father ought to pay all of the mother’s costs, on scale, which I fix in the sum of $6276.

Stay of order for payment of costs
67.	In relation to the costs of $6276, I asked the father whether he wanted a stay to allow him time to pay the costs.  He said he had no money now to pay and would not be getting money in the future. The father did not nominate a date by which he would or could pay. Nothing, it would appear to me, is going to change. The only change identified by the father is that he will file an appeal against this decision.  He had no specific proposals in relation to payment by instalment. Accordingly, I will not provide the father with an extension of time to pay.

The penalty
68.	A sanction imposed for a contravention of an order must be proportionate to the contravention and appropriate in all of the circumstances.  I should not impose a sentence which is more severe than is necessary to achieve the purpose for which it is imposed. I have already indicated the purpose of the penalty is to secure compliance with the orders of the court.  
69.	The penalty options are found under s 70NFB(2)(a)-(h) of the Act.  They are not listed in order of severity or in a hierarchy of escalating importance. They include the imposition of a sentence of imprisonment under s 70NFB(2)(e).  I would not sentence the father to a period of imprisonment unless I was satisfied that in all of the circumstances it was not appropriate to impose any other penalty.  That is not the case here.
70.	The principles of sentencing which also need to be considered when determining an appropriate consequential order include the circumstances of the contravention and the factors subjective to the person found to have contravened the orders.  
71.	I take into consideration factors such as the character, age, means and physical or mental condition of the father and his conduct since the contravention has occurred, for example, remorse or contrition.  The father is 42 years old.  I am informed he is in a de facto relationship of some three and three-quarter years duration with Ms B.  They have a daughter called C who is three years of age.  The father has no income from personal exertion and has not been in gainful employment since he was first imprisoned in 2002 in relation to an assault on the mother.  Since June of 2009 he has had the care of the oldest child of the parties’ relationship, J. J ran away from the mother’s home to live with the father.  The father has paid some school fees for J and some extracurricular expenses since J went into his care.  He has the wherewithal to retain senior counsel.  He participates in recreational car racing.
72.	The father is, for the first time, seeking treatment by a psychologist, Ms P.  He has had five visits with the psychologist, and each visit has been for a period up to one hour.  There is no evidence from Ms P or any other appropriately-qualified person, and in the circumstances senior counsel for the father conceded that there was no evidence in relation to the psychological treatment that was going to assist the father’s case.
73.	I have regard to the submissions by both senior counsel for the father and the father himself that he is seeking some form of psychological treatment and that he is distressed by the proceedings.  However, I must also be mindful of the distress on the applicant, who has found it necessary to bring the proceedings. Her distress was palpable when she was cross-examined by counsel for the father. 
74.	I informed counsel that I was unaware of whether the necessary arrangements between the State and Federal government were in place such as would enable a community based order to be implemented.  No counsel sought to address me on the issue.  None contended for a community based order. In any event, a community based order would likely be of quite significant duration and may serve to further aggravate the father’s subjective feelings of persecution and victimisation.
75.	A bond would not have sufficient direct and immediate impact on the father to encourage him to change his behaviour.  If there was to be a bond, a term of it would be to be of good behaviour and abide orders of the court.  Breach of the bond could attract further penalties for the father in addition to those already imposed upon him.  I have grave doubts as to the father’s self control and his ability to observe court orders in circumstances where he perceives an order to conflict with what he wants.  It is not appropriate for me to require the father to enter into a bond in the absence of an indication by him, or on his behalf, that he seeks a bond.
76.	I can fine the respondent not more than 60 penalty units on each count.  To my mind a fine is the appropriate order; that is, money which is paid to and recoverable by the government, not by the mother.  This is the best available means of achieving some remedial outcome whereby the whole family can move on whilst ensuring that the father will understand that there are consequences for breaching court orders.  My objective is to ensure that the limitations imposed by court orders are recognised by the father as more than words on a page.  The consequential orders as to costs and a fine are intended to be remedial not merely punitive.
77.	In my assessment this is a matter in which it is sensible to impose one cumulative order.  The maximum fine for each count is $7200.  In the circumstances of this case I find that a fine of $3000 is the appropriate penalty for all counts.  Together with costs of $6276, that is the total penalty in relation to the 11 counts proved against the father.  The fine is equally apportionable between the 11 counts because, in spite of the father’s expression of remorse in relation to one count, I regard the father’s actions in each count to be an equal ingredient in his concerted effort by him to undermine the effect of the primary order made for the personal protection of the mother and the children. 

Variation of parenting orders
78.	Section 70NFB of the Act contains a notation that in contravention proceedings under Subdivision F the court may vary a primary parenting order.  In this case, some of the parenting orders are inappropriate; in particular, those that make the mother responsible for the residence of J, when he has been in the care of the father since running away in June of last year.  
79.	The mother and independent’s children’s lawyer submit some of the orders do not go far enough to regulate or enforce the father not having unsupervised time with the children. In particular, the father has read the previous injunctions as permitting of him and Ms B going to school functions (not held on school grounds), sporting events, and basketball events, and taking those as opportunities to see the children.  I have heard evidence of the father telling the girls on one occasion to accompany him to his car after a basketball match so that he could give them some presents.  That action constituted a breach of the order not to contact the children. 
80.	The mother has, pursuant to an order by me, provided a minute of final orders sought.  At the time, the father was represented by senior counsel.  The orders affected Ms B in addition to the father.  Some of the orders, such as those prohibiting the father and Ms B from approaching the school, have been in force for between three and 12 months.  Other orders now applied for by the mother are new orders directed to the father contacting the girls at sporting events or school functions held off campus.  Ms B, having received notification of the precise terms of the orders, has made a submission that she wants an “adjournment to a later date, to enable me to obtain my own independent legal representation.”  She is entitled to procedural fairness and I will provide her with an opportunity to get legal advice and consider her position by adjourning the matter.
81.	Vis-à-vis the father, there is also good reason for an adjournment. Sometimes he makes quite eloquent submissions to the court whilst at other times he appears to be highly distressed.  I have some concerns that he may lack certain capacities, certainly an appropriate level of self control.  He should be afforded an opportunity to consider the appointment of a next friend or litigation guardian.
82.	I will return to Hobart to determine the part-heard proceedings between the paternal grandparents and the mother at the end of May 2010.  These matters can proceed as part of that sitting, preferably prior to the grandparents’ application.  I am satisfied, however, that there is a need for holding orders between now and then.
83.	I have regard to the primary objective of the legislation;  that is, the need for the children to be protected from physical or emotional abuse and harm, and the ongoing prospective inquiry of the benefits of children having a relationship with both of their parents.  The latter principle is one which has not been investigated in court proceedings for a year because the father will not participate in the proceedings.  The issues will, of course, arise when I consider the grandparent’s extant application.
84.	I take into account the need to protect the children from abuse and harm.  
85.	I take into account the parental capacity of the mother and the father.  The mother is somewhat fragile.  I accept her evidence given in these proceedings that she has a genuine fear that the father may move at any time to remove the girls from school or from a sporting venue and that he does not abide orders of the court.
86.	The family reports and other memoranda which have been received in the parenting matters cast a very significant pall over the parental capacity of the father.  At page 6 of the parent and children’s issues assessment by Ms N dated November 2008, Ms N noted:
Whether [the father] consciously intends to or not, his behaviour involving the children must be described as emotional abuse.  It is recommended that [the father] seeks professional assistance in reviewing how his behaviour is experienced by the children.
At page 8, Ms N opines:
[The father] acknowledged having psychological problems with his mental health.  It is recommended that he seeks further treatment and support, so that he becomes more aware of the impact of his emotional expression and his behaviour on the welfare of the children.
87.	As I indicated earlier, senior counsel for the father advised that the father has on five occasions seen Ms P for treatment of psychological problems.  Today, the father has brought what I accept is a receipt for attending upon Ms P yesterday, which would total six occasions.  However, the fact remains that the father has not adduced any evidence from Ms P and I am unable to assume that there is evidence which would support his case.
88.	I take into account the wishes of the girls, who are in the care of the mother.  I have no doubt that their views are that they would like to see their sister C, the father, their brother J and Ms B.  The weight that I accord to those views, however, will be something influenced by the testing of Ms N’s evidence in relation to parental capacity and the exposure of the children to the emotional abuse perpetrated by the father.  In the circumstances, on this urgent and pressing basis, I do not accord significant weight to the views of the girls.  
89.	In the circumstances, and treating the best interests of the girls as the paramount consideration, I will accede to the request for orders to be imposed between now and the end of May to be reviewed when this matter recommences in May 2010.  
90.	Both Ms B and the father plead for the four children to be together; that is J, the girls, and their sister C.  According to Ms B, no one had considered the possibility of the four children being together at a contact centre, which seems to me to be an entirely safe, secure, and child-focussed environment. Ms B has not said to the court that she will not countenance a contact centre.  However, the independent children’s lawyer informed the court he has already made this suggestion, which was refused by Ms B.  
91.	I do not propose to impose any orders in relation to a contact centre, but I will request that the independent children’s lawyer make all of the necessary investigations and then distribute between the parties details of what availability and opportunity there is for these four children to spend time together in a contact centre between now and May 2010.  
92.	The father raises the possibility of C and J going to the mother’s home, a farm in a rural setting in northern Tasmania, and spending half a day there.  It is now 5.50 p.m. I am considering holding orders and the mother was not cross examined on any of these issues.  I have not pressed the mother’s counsel for a response because the father does not put it any higher than something he would have to ask Ms B about.  It may be that there are circumstances that mitigate against the mother hosting the four children, as attractive as it might initially sound, and that the safety and security of a contact centre is preferable.  
93.	There is nothing preventing the parties giving the father’s suggestion some consideration between now and the end of May 2010.  I note that the father says he will entirely absent himself from any involvement when the children are seeing each other.  In circumstances where a contact centre is employed, it could be incumbent on Ms B to transport J and C to that venue.  The father’s last remarks were that Ms B does not drive so he would have to transport her to any premises such as a contact centre or the mother’s residence.  The current injunctions precluding the father approaching the mother’s residence are an impediment to the father driving Ms B to the mother’s front door.  A contact centre will afford the father protection against further alleged breaches of orders.  If the father and Ms B want the four children to share each others’ company between now and the resumption of this matter and the determination of any application they may file and serve, serious consideration ought to be given to a contact centre. 

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett 

Associate:  

Date:  19 April  2010