Was Imprisonment Fair Punishment For Breach of a Family Court Order
Punishment For Breach of a Family Court Order
In a recent decision of the Family Court, it was ordered that a mother serve an immediate term of imprisonment of 14 days and further that she be subject to a further term of imprisonment of 14 days which will be fully suspended.
This arose because the mother had failed on numerous occasions to allow her child to spend time with the child’s father when there were orders in place for the child to be with the father. She had given an undertaking to the Court in the following terms:
“I undertake to the Court that for a period of 24 months from the giving of this undertaking I will comply with the terms of any parenting order in force from time to time in relation to my child.
I acknowledge that should it be proven that I have not complied with the condition of this bond that I may be required to pay a fine not exceeding 10 penalty units (a penalty unit is currently $222) and I will be liable to be dealt with again for contravening orders that required me to provide my child to her Father.
And further that I will be liable to have the order suspending the 14 days terms of imprisonment in relation to the previous contravention terminated resulting in me being imprisoned for a period of 14 days.”
- It was noted when she entered into the bond that:
- The purpose and effect of the requirement to enter into the bond were to require her to comply with parenting orders for a period of 24 months.
- Should she fail to enter into the bond, she would be imprisoned for a maximum of 14 days, and that she would be subject to being dealt with again for those contraventions to which the bond relates and or be dealt with for contempt of the Court.
- Should she fail to act in accordance with the bond she would be subject to:
- Having the order for suspension of the term of imprisonment terminated and being required to serve 14 days imprisonment;
(b) The imposition of a fine of up to 10 penalty units;
(c) Being dealt with again for the contraventions.
Her solicitor noted that he had explained to her in language likely to be readily understood by her:
- The purpose and effect of the requirements to enter into the bond;
(b) The consequences that may follow if she fails to enter into the bond;
(c) The consequences that may follow if having entered into the bond she fails to act in accordance with the bond.
- The Judge found that the mother failed to provide the child to the father in contravention of orders made by the Court on a stated date. This was admitted by the mother. The mother asserted but did not establish, that she had a reasonable excuse.
- The Judge further found that the mother contravened further orders of the Court in two respects. The first count, by failing to attend upon the single expert for the preparation of her report, and the second count, by failing to provide the child for assessment by the single expert. These were taken not to be admitted by the mother but were established. The mother failed to establish a reasonable excuse.
- The Judge further commented that casting a long shadow across the proceedings for these contraventions was the mother’s status as in respect of seven previous contraventions the mother was on a bond for a period of six months, and in respect of a further three previous contraventions was on a bond for a period of two years in respect of two of these contraventions, the mother was subject to concurrent 14-day terms of imprisonment which had been suspended on her entry into the abovementioned bond.
The Judge found that the fact the contravention occurred whilst the mother was subject to a bond renders it again more serious in its proper context. The second and third contraventions further had the effect of derailing the assessment process to prepare the matter for trial, resulting in a delay of the trial.
Again, in the context of a strong and recent history of non-compliance and in the context of occurring in the currency of a bond, it should be considered that these are more serious contraventions. The Judge was satisfied that the three counts are more serious beyond a reasonable doubt.
It is necessary to consider whether each matter that points to a sanction of imprisonment, fines, or community service order is established beyond a reasonable doubt. An order for imprisonment can be made under Division 13A of Part VII of the Family Law Act.
The Court must be satisfied beyond reasonable doubt of firstly all of the factual matters that relate to the finding of contravention and secondly, that the contravention is a “more serious contravention” to which the more serious and more punitive powers contained in Subdivision F of Division 13A apply and thirdly, the Court must be satisfied beyond reasonable doubt of the inappropriateness of other available sanctions.
The Judge stated that the suspension of that previous term of imprisonment was the last hope of compliance without incarcerating the mother. It was a hope that was misplaced.
The Judge was persuaded that it was only gaol time, albeit as short as possible a period, that will cause the mother to comply with orders whereas previously, he was persuaded that having such a term hanging over the mother’s head would be sufficient or sufficiently salutary.
The Judge observed that it is contrary to the child’s best interest for the mother to be non-compliant with the Court orders and that to achieve compliance, it is necessary that the mother serve the time that was previously suspended.
Accordingly, the order for suspension was terminated and it was ordered that the mother serve 14 days imprisonment in respect of the contraventions.
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