The Eye is in the Detail: Family Law Parenting Contravention Order Bond Overturned

In Stapleton & Hayes [2016] FamCAFC 171 (1 September 2016) (“Stapleton & Hayes” or “the case”), the Family Court (the Court”) considered the ramifications of a Contravention Order made against Ms Stapleton in 2015.

Introduction

In short, a Contravention Order is where a Parenting Order has been breached by one of the parties to the order. Specifically, where:

  1. the parties do not comply with its requirements; or
  2. do not make an effort to comply with the terms of the order; or
  3. prevent another party bound to the order from complying with it.

Where parties can provide a reasonable excuse for the contravention, the Court may except such behaviour. It is important to note that not all acts of contravention will be entertained by the Court. Where one party has disobeyed an order marginally or superficially, the Court would consider an action against that contravention as frivolous and would not contemplate penalising the party concerned. For example, if a certain Party XYZ was compelled to see the Child concerned with a Parenting Order at 5pm on a Friday evening and Party XYZ arrived to make contact with the child at 5.15pm, it would not likely, unless considered alongside a string of other infringements of the Order, be considered as more than trivial should an applicant pursue action against the contravention in court.

Background and the Appeal

Stapleton & Haynes concerned an appeal by Ms Stapleton (“the Appellant”) against a bond ordered by the primary judge, Justice Scarlett, pursuant to S 70NEC of the Family Law Act  (the Act). The bond was issued due to the Appellant’s contraventions of a Parenting Order between Ms Stapleton and Mr Hayes (“the Parties”).

The Parties had two children who were born in 2000 and 2001 (“the Children”). Final Parenting Orders were made regarding the Parties and the care of the children in 2009. The Children were to reside with the Respondent who would have sole parental responsibility for them. There were clauses undertaken that allowed the Appellant to spend time with the Children. The Respondent initiated four Contravention Applications that stated that the Appellant had breached the Orders on no less than 31 occasions between November 2012 and March 2014. In the 2015 hearing, Justice Scarlett found that five contraventions were established, and accordingly imposed an 18 month bond under provisions in the Act.

The Appellant had three prongs to her appeal against the bond. First, that the evidence tendered was not sufficient to make out a prima facie case. Second, that, in any case, such a bond was an excessive punishment. And third, that the primary judge did not employ the correct procedures for applying the penalty.

Appellate Decision

Justice Aldridge believed that it was necessary to consider whether the contraventions accepted by Justice Scarlett did indeed make out a prima facie case. The breaches of the Order all related to Order 5 made by Justice Moore in 2009. Order 5 inculcated the nature of the mother’s access to the Children. In brief, the Appellant was permitted to spend time with the Children for two weekends each term, and for part of the school holidays as well as for other periods of time as agreed between the Parties.

The contraventions were listed and discussed in chronological order:.

24 November 2012: Justice Aldridge considered an incident in which the Appellant called the children away from a group at a social event including the Respondent, which prevented the Respondent from spending his allowed time with the Children. Although the primary judge found it a minor contravention, the appeal judge distinguished the decision, stating that there was insufficient evidence to find a prima facie case. There was no evidence as to the length of time the Children were drawn away from the Respondent and that it was an actual breach of the Order.

26 November 2012: This incident regarded a sports training session in which the Appellant called the Children away to spend time with her. Justice Aldridge was not convinced that the evidence proffered suggested the time the Children spent with the Appellant was substantial, nor that the Respondent was in the vicinity, and that the Appellant’s behaviour indeed deprived the Respondent of his contact with the Children. The contravention was not found.

31 August 2013: His Honour in the present case found, as with the prior two contraventions, that there was insufficient evidence to support a prima facie case. The Appellant’s behavior in “coaxing” one of the Children to spend time with her was again viewed as lacking in the essential ingredients which would satisfy the evidentiary burden. The contravention was overturned.

23 January 2014: The primary judge found that the Appellant was in contravention as she had breached an annexed Agreement the Parties made that the Respondent insisted superseded the Orders. \Justice Aldridge found, however, that a contravention for the purposes of Division 13A of the Act only related to Orders and not any separate agreements. His Honour quashed the contravention.

2 March 2014: The incident of March 2 was the only  contravention that the Court accepted and affirmed in this appeal. The Appellant’s car broke down in March 2014, which she said rendered her unable to return the Children as under the Order. Justice Aldridge found that the Appellant provided insufficient evidence to support her claim and that it was not a reasonable excuse for the duration in which the Order was breached. His Honour accepted the findings of Justice Scarlett regarding this incident.

The imposition of the bond

The primary judge formed the bond upon his findings of contravention for 31 August 2013 and 2 March 2014. His Honour found the other two contraventions, though proved, were trivial. The bond would require the Appellant to:

  1. be of good behavior; and
  2. conform with the 2009 Parenting Orders.

In this case, however, Justice Aldridge was perplexed about the contraventions the primary judge relied upon and was concerned that his Honour had even been mistaken in his summation of the case and resultant penalty. The Court here found that at least one, if not two, of the grounds relied upon by the primary judge-had a mistake have been made in judgment,were not made out on appeal and therefore that the imposition of a bond would not be appropriate. His Honour found for the Appellant, and struck out the 18 month bond place on the Appellant.

The Parties acted for themselves and Justice Aldridge made no order for costs.

Conclusion

In order to ensure a prima facie contravention is accepted by the court, sufficient and detailed evidence must be presented. His Honour found problems with the primary judge’s reasoning due, in great part, to this lax analysis and want of detail. His Honour, furthermore, believed that imposing a bond was an excessive penalty for a mere two contraventions of the Parenting Order, with the other two contraventions accepted as trivial or not substantial enough to merit a penalty by the Court. It is a reminder that record keeping in matters regarding Contravention Applications is essential. The evidence required for a contravention to be found and for a penalty to be imposed need be comprehensive, to allow the court the opportunity of examining the dispute equitably and for the best interests of the child.

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