Ana and Ana (No. 2)

[2012] FamCA 501

FAMILY COURT OF AUSTRALIA

ANA & ANA (NO. 2) [2012] FamCA 501

FAMILY LAW – CONTRAVENTION - Contravention application – Respondent father appearing in person – Particulars of orders allegedly breached considered – Plea taken – Conviction only on one count – No reasonable excuse – Conviction recorded but without further penalty imposed

Family Law Act 1975 (Cth): Division 13A of Part VII; s 70NDA

APPLICANT: Ms Ana

RESPONDENT: Mr Ana

INDEPENDENT CHILDREN’S LAWYER: Mr B Sayers

FILE NUMBER: MLC 1367 of 2008

DATE DELIVERED: 25 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 25 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchins

SOLICITOR FOR THE APPLICANT: Perisic & Thomas Lawyers

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Lane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER T J Mulvany & Co

Orders

IT IS ORDERED:

1. THAT the father be convicted of a breach of the Orders of Justice Cronin dated 11 July 2011 but only insofar as it was identified in sub-paragraph (e) of the mother’s contravention application filed 16 March 2012.

2. THAT the further charges brought against the father in that contravention application and identified in sub-paragraphs (a), (b), (c), (d), (f) and (g) be and are each dismissed.

3. THAT the conviction of the father on the one above count be recorded but otherwise no formal penalty be imposed or recorded.

4. THAT the extempore reasons for judgment delivered both as to the upholding of any findings about the proven contravention, the dismissal of the other charges of contravention and as to penalty be transcribed, placed upon the Court file and be made available to the parties.

5. THAT otherwise the mother’s contravention application filed 16 March 2012 be finalised and be removed from the list of outstanding matters to be heard.

6. THAT the father pay the costs of the mother of and incidental to the hearing this day and that such costs be referred to a Registrar of this Court for fixing a date as to assessment but only upon a proper bill of costs being filed and served by the mother’s solicitor.

7. THAT the costs order pronounced by His Honour Justice Cronin on 23 April 2012, which reserved the mother’s costs of that day, be likewise referred to the Registrar for assessment upon proper documentation to be filed and served.

8. THAT both costs are to be assessed by the Registrar on a party / party basis and the period for payment by the father of any costs be fixed to be sixty (60) days after the assessment thereof.

9. THAT the further extempore judgment of and incidental to the costs issue be transcribed, placed upon the Court file and made available to the parties.

10. THAT it is directed that the father attend the offices of Dr A at … P Street, Suburb S punctually at 9.30 a.m. on 11 September 2012 for the purposes of a consultation and preparation of a psychiatric assessment for the purposes of the adjourned court hearing.

11. THAT the preparation of the s 62(G) Family Report ordered by Justice Bell on 21 February 2012 be expedited and be commenced as soon as practicable and before the father’s first scheduled appointment with Dr A on 11 September 2012.

12. THAT it is requested that the Independent Children’s Lawyer bring to the attention of the Director, Child Dispute Services, Family Court of Australia, Melbourne Registry the preceding order so as to facilitate the commencement of interviews for that family report as soon as practicable.

13. THAT the mother’s application filed 13 September 2011 and her further amended application filed on 24 November 2011 be reinstated without any loss of priority as and from that date.

14. THAT otherwise that further amended initiating application of the mother and any response of the father be listed for further case management and directions before Young J at 11.00 a.m. on Wednesday 5 September 2012.

15. THAT liberty be reserved to the Independent Children’s Lawyer to request a relisting of this matter for further directions and case management at any reasonable time upon proper documentation filed and served but prior to the adjourned hearing date.

THAT UNTIL FURTHER ORDER AND UPON APPLICATION OF THE INDEPENDENT CHILDREN’S LAWYER

1. THAT the father be and is hereby restrained, by himself, his servants or agents from entering upon or loitering in or near to the vicinity of School M (which is attended by the child E) or from the property at …C Street, Town B, 3…, Victoria (at which residence the child E permanently resides).

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the mother and the Independent Children’s Lawyer.

IT IS NOTED

A.THAT pursuant to consent orders entered into by the parties in the hearing before Justice Bell in February 2012, the father is now to have two (2) hours supervised time in each fortnight at the D Contact Centre.  He has exercised one period of such supervised time but for reasons which are in dispute between the parties the last two occasions have not been successful and E has not spent any time with his father.

B.THAT the Independent Children’s Lawyer has foreshadowed that they will monitor the situation at the D Contact Centre, subpoena their records and contact notes if appropriate and otherwise be diligent about the relisting of the matter before the Court, if necessary.

C.THAT the interim injunctive orders was made for the benefit of the child having regard to the existing Magistrates’ Court intervention order in favour of the mother.  The order in paragraph 15 hereof was not pronounced in favour of the mother so as to overlap the jurisdiction of the State Magistrates’ Court.

D.THAT the father has been in Court and has heard and understands that he is not to enter upon or loiter in or near to E’s home or school and that matter is recorded as a notation to these Orders to emphasise that it has been explained to and has been heard by the father and he has acknowledged his understanding thereof.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ana & Ana (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1367 of 2008

Ms Ana

Applicant

And

Mr Ana

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I will deliver ex tempore reasons immediately.  I have heard today a Contravention Application issued by the mother against the father.  As background, these parties were married for two and a half years, or thereabouts. They separated in or about October of 2007.  A Decree Nisi of Dissolution of Marriage was pronounced in 2008.  There was one child born during the marriage, E (“the child”), born in February 2006, and he is now almost six and a half years of age.  These proceedings have had a lengthy, indeed, a tumultuous life in the Federal Magistrates Court and now in this Court.  It is a matter of both fact and observation that the court files in these proceedings are contained in four boxes.  That highlights the level of continuous litigation. 

2. With that background there is one specific application before me today.  The mother alleged a contravention of paragraph 1 of the orders of 11 July 2011.  That is the order pronounced by Cronin J wherein he suspended, until further order, the previous existing spend time and communication orders that favoured the father in seeing and spending time with his son, the child.  They are orders that were made by consent in the Federal Magistrates Court on 17 December 2008.  Despite the suspension of the father’s time and communication with the child, I record that there are otherwise no extant injunctive orders of this Court as between the parents or otherwise restricting where the father may travel or the circumstances in which he may casually observe his son within the community. 

3. There is an intervention order issued out of the Magistrates’ Court.  That order was issued on 8 September 2010 and is operative for a two-year period and expires on 7 September of this year.  The protected person in that order is the mother only and not the child.  That order is before the Court as an annexure to the mother’s affidavit.  It is not disputed by the father.  The order records that the father is restrained from committing any family violence as against the mother, from damaging property but, particularly, he is restrained from approaching within five metres of her or from going to or remaining within 200 metres of her former residence or any other place where she may live from time to time.  Whilst the mother has now moved from the former Moorabool property, she now rents on an isolated property in and around the Town E area, nevertheless, that Magistrates’ Court order remains operative.  There was some passing mention in evidence in these proceedings that that order remains under challenge, but that is a matter for a different court and is not a matter before me this day and is a matter upon which I express absolutely no considered opinion. 

4. Returning to the Contravention Application, there were initially seven counts of alleged contraventions identified and they are included as (a) - (g), inclusive, in that Contravention Application.  At the commencement of proceedings today Mr Hutchins of counsel, who appears for the mother, discontinued the charges brought in subparagraphs (d) and (g) thereof and, thus, the husband was not required to plead those charges and those matters have not in any way been the subject of a hearing or submissions this day. 

5. The father represented himself as he has done on previous occasions.  He was asked to indicate whether he would plead guilty or not guilty to the remaining five counts as alleged.  The father entered a plea of guilty to counts (a), (b) and (e), but otherwise I entered on his behalf a plea of not guilty to the charges identified in sub-paragraphs (c) and (f) of the charges. 

6. The matter proceeded for hearing on the affidavits filed and upon oral evidence in cross-examination.  I record that the Independent Children’s Lawyer was in court and had briefed Ms Lane of Counsel.  There may have been other child-related issues arising this day and it was primarily for that purpose, or any other discussions, that the Independent Children’s Lawyer involved himself in this hearing, and rightly so in my opinion.  Nevertheless, Ms Lane advised the Court that she was not instructed to involve herself in the contravention proceedings and, therefore, has not made submissions and has not cross-examined either of the parties.  Likewise, that was appropriate in the circumstances of this case and with the issues before the Court. 

7. The mother’s evidence was contained within her affidavit, filed 16 March 2012, and the annexures thereto.  I have carefully read her evidence.  Otherwise, she elaborated upon some aspects of that evidence and was also cross-examined by the father. 

8. At the commencement of proceedings I deleted from paragraph 4(a)(ii) of her affidavit the following words “and I suspect that the father had returned to the property.”  There was no objection by her Counsel to the removal of those words from her affidavit which were not supported by fact and were inadmissible.

9. The father had earlier filed, on 20 February 2012, an affidavit.  That affidavit was filed before the Contravention Application and specifically I refrained from reading that affidavit prior to the trial.  In the course of the hearing reference was made to, and cross-examination occurred upon, paragraph 4 of that affidavit.  The husband acknowledged the various matters in that paragraph and, in that context, I have now cited only that paragraph of that particular affidavit.  The relevance of that paragraph is to identify the known fact of the child’s date of birth, being … February 2006, and the fact that on his birthday in this year the father with a friend, drove to, or was driven to, and attended inside the boundaries of the mother’s rented property.

10. I return to the Contravention Application and the orders upon which it is founded.  In my opinion, and I have concluded that, there cannot be any finding entertained in respect of the charge identified in subparagraph (f) thereof.  It was alleged that the father followed the child at the Town E Fair and attempted to attract his attention.  Given the evidence I have heard on that matter and the chance meeting and the distance that the father kept from the child on that occasion, I have no evidence of him following the child and, otherwise, I do not make any finding that there was a breach of any order and I do so on the factual basis without addressing the legal issues to which I will later refer.

11. Likewise, and notwithstanding his plea of guilty to the charge in sub-paragraph (b) I have no factual basis to find a charge proved against the father in that he placed an affidavit in the letterbox of the mother’s home and left some lollies for the child.  The mother and child were not at home at the time, did not see the father, and neither of them were in any way inconvenienced or threatened by his physical presence. That letterbox was some 200 metres from the actual home.  I do understand that there was a plea entered of guilty on that count, but I simply do not accept the guilty plea, and I will not find any breach of that charge on the factual basis before me.  I have specifically dealt with those two factual matters independently from the wider legal issues of the orders breached.

12. Contraventions of parenting orders are dealt with pursuant to Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Subdivision D of Division 13A applies where a contravention is established but there is a reasonable excuse for that contravention. First, I do not find that there has been a contravention of charges (f) or (b) given the jurisdictional issues discussed below. Nonetheless, even if there was a contravention, I find that the father had a reasonable excuse for both of the contraventions in (f) and (b), given that the fair was a public event which the father said he attended annually and that he said that he left the affidavit in the letterbox for the purpose of effecting service.

13. As an overview, I am not satisfied that the Contravention Application is properly drafted or properly before this Court.  The order of Cronin J was to suspend the time that the child would spend with or communicate with his father pursuant to paragraph 4 of the consent orders made on 17 December 2008.  The suspended order was not an order that was directed to the father, though, of course, the benefits flowed to the father.  It was an order drawn by consent of the parties that was directed to the time that the child spent with his father or was able to communicate with him.  What is suspended are the particular times, dates and occasions contained within that far ranging paragraph 4 of those earlier orders.

14. There is no injunctive order therein, and the order in favour of the child dealt only with specified times when he could see or communicate with his father.  I therefore read the orders of Cronin J of 11 July 2011, in paragraph 1, as merely suspending all of those times and events.  His Honour’s order does not say that there was any restraint placed upon the father or wider injunctive order that could be read into those orders in terms of any casual contact.

15. Most likely, his Honour was aware of the outstanding Magistrates’ Court intervention order that then operated, and thus the jurisdiction of this court to make such orders in favour of the mother had to be read in the context of those existing orders of another court of State jurisdiction rather than the Commonwealth jurisdiction bestowed upon this Court.  Save for the charge identified in sub-paragraph (e) of the Contravention Application, I am of the view that each of the other charges as laid, that is, sub-paragraphs (a), (b), (c) and (f) would all have failed on the basis of that jurisdictional aspect of the case. 

16. In any event, as I have already recorded, the charges laid in paragraphs (b) and (f) fail on the facts independent of any other examination of the existing orders and the law. 

17. I am not comfortable on a factual basis in making any findings appropriate to support the charge in sub-paragraph (c) which events occurred on or about 5 November 2011.  I do not know if the father entered the property.  There were conversations that perhaps occurred with the child within the perimeter of the mother’s rented property, which is over 40 acres of bushland and borders upon public land.  There is no matter within the affidavit that convinced me that there was an enforceable breach leaving aside the structure of the orders and the jurisdictional issues to which I have identified.  Thus I would dismiss a charge laid in sub-paragraph (c) of the application.

18. Likewise, I am not comfortable on a factual basis in making any findings appropriate to support the charge in sub-paragraph (a), which events occurred in late July 2011.  The mother says that the father came to the property and spoke with the child, telling the child that he was going to “fix it” in relation to the suspension of time.  The father has pleaded guilty to speaking to the child that day, however, denies entering the property.  He says that he went to the property with his sister, not expecting to see the child.  He says that the child appeared on the road outside the property, whereupon the father spoke to the child.  The father therefore denies entering onto the property, although pleads guilty to having a conversation with the child.  Overall, there is insufficient evidence for me to find whether or not the father entered the property and again, there is no matter which has convinced me that there was an enforceable breach, both factually and jurisdictionally.   

19. That, therefore, leaves one only charge identified in sub-paragraph (e) and the allegation is that on the child’s birthday, the father attended at the property with a friend, waited in the car outside the actual home, but 180 metres within the perimeter fence of the property.  The father did not speak to the child.  He remained outside for about an hour whilst there were discussions in the home between the mother and the father’s friend identified as T.

20. I do understand that the father went there intentionally on the birthday, but for the purposes of delivering presents, including those from the child’s paternal grandparents.  This matter must be separately considered within the ambit of the discharged order that formally was contained within paragraph 4(g) of those 17 December 2008 orders which are now suspended.

21. That order provided, initially, for there to be time spent between the father and his son for two hours on the birthday if the birthday fell on a weekday.  In this calendar year, that birthday was on a Tuesday.  Specifically, then the father knew that the order for him to spend time with the child on his birthday was suspended.  There was no other operative order for that day and leaving aside all injunctive and restraining orders arising out of the Magistrates’ Court intervention orders that were extant.  The father, nevertheless, entered the property with his friend, remained for about an hour in close proximity to the home and did so with an understanding that contact time on the child’s birthday had been suspended. 

22. I have reflected carefully upon whether or not that sub-paragraph of the original order now suspended is and should be sufficient to found a Contravention Application.  Factually, there is no doubt, and the evidence of the father clearly identified that he went there and intended to go there on the child’s birthday for the specific purpose of delivering presents and/or encouraging a mediation type discussion between the mother and his friend T. 

1. On balance I must determine these matters with the mother discharging the onus of proof and I being satisfied on the balance of probabilities, indeed at the higher level of that onus of proof, that the father knew of the discharge of the order, knew that he should not be there, and that he had no reasonable excuse pursuant to s70NDA of the Act to be there but, in any event, went for a purpose that was not proper and was not justified.

2. I conclude that the clear wording of that original paragraph 4(g) is sufficient to found the Contravention Application.  Otherwise I have no doubt that the father knew the purpose he was going there and selected that particular birthday.  As such I conclude that it is proper that I find the father guilty as charged on that particular count only.  I further record that the father pleaded guilty to that count, though, I do not base my finding on that fact.  The father was self-represented, and I have given him very considerable understanding and leeway in the conduct of these proceedings.

3. Nevertheless, he did plead guilty, but more substantially I am convinced that he understood the significance of that particular day, and his intention was to visit, albeit at 7.30 p.m.   He had no reasonable excuse.  I therefore intend to dismiss each of the other six counts, but to record a finding of guilty as against only sub-paragraph (e) of the Contravention Application of 16 March 2012.  I pause now to hear submissions on and reflect on any appropriate punishment, if any.

RECORDED:   NOT TRANSCRIBED

1. Having determined that the father be convicted on one count of a breach of the order of Cronin J, I turn my mind to penalty.  There are two effective options.  One is to require a form of bond or reconnaissance to be entered into by the father.  The other is merely to record a conviction.  I have determined that any form of imprisonment is an inappropriate penalty on this charge and I have not entertained that as an option.  I have considered a fine, but I do know some matters of and relating to the husband’s financial circumstances.  He says he is not working.  He owes a large sum of money to the mother and/or to child support.  I will not impose a fine. 

2. On balance, and given the particular nature of the charge and my initial uncertainty, which perhaps was moderated by Mr Hutchins’ address, I am not going to do other than record a conviction. What I intend to do is to pronounce an appropriate order which will highlight the conviction of the father on one count only.  I have already warned and I repeat the warning to the father of coming back to Court on any other Contravention Application where he is alleged to have breached orders, and if he does so as a repeat offender and if it is proved, then, clearly, there will be a more sustained consideration of appropriate penalties. 

3. I might add that I briefly reflected upon a penalty by way of fine and suspending the payment of that fine, but I did think that was also inappropriate in the circumstances of the case.  I will have the ex tempore reasons for judgment on the decision proper and on penalty transcribed, placed upon the court file and made available to the parties. 

   ORDERS DELIVERED

   RECORDED:   NOT TRANSCRIBED

4. I have now an application by Counsel for the mother for costs of and incidental to the hearing this day.  It is now almost 4 o’clock and thus the parties have been here the entirety of the day.  First, my attention has been directed to the hearing before Cronin J on 23 April 2012.  The Contravention Application was before his Honour that day but was not heard.  The matter was adjourned to the hearing before me this day.  His Honour, however, reserved the costs of the wife to the trial judge.

5. Mr Hutchins asks that matter be also adjourned in that he does not have precise instructions and cannot remember the events of the day, or how long he was here, and presumably, the fees incurred.  Otherwise, in respect of the hearing today, he seeks costs and has nominated a sum of $4,000, inclusive of $500 for his solicitor, who was not present at Court at any time of the proceedings this day.  The father has opposed any costs order. 

6. What I intend to do in respect of the hearing today is to order that the father pay the mother’s costs but that they are to be assessed by a Registrar on a party-party basis.  I am not prepared to nominate a dollar value to the costs sum when it is opposed by a self-represented litigant.  I intend also to direct that the wife’s costs of 23 April 2012, as have been previously ordered, be also consolidated with the costs order of this day and listed before a Registrar for assessment.

7. It will be the obligation of the solicitor for the mother to ensure that appropriate bills of cost are prepared, the father served and the matter listed before a Registrar for argument and assessment as to quantum.  I will also have these reasons transcribed and made available to the parties. 

8. The reasons will endorse my conclusion that it is just, pursuant to section 117(2) of the Act for a costs order to be made. I have specifically had regard to the various factors identified in sub-paragraph (2A) thereof.

9. I am aware of the difficult financial circumstances of the father, and presently I take it on face value that he has lost his job.  I understand there are monies outstanding to the mother from the property settlement.  Likewise, there are arrears of child support owing.  All of those matters will need to be considered.  The issue, however, is that these were contravention proceedings and on one count, the father was wholly unsuccessful.  I well understand that the reverse applies and that the mother was unsuccessful in proving a case, and thereby a conviction, against the father on six of the other seven matters.

10. Nevertheless, my conclusion is that it is just that, there being a conviction on one count, the father pay the reasonable costs assessed for the all-day attendance of experienced Counsel.  I have not had any application made by the Independent Children’s Lawyer for any costs on the contravention, and that is proper.  As I have said, these ex tempore reasons will be transcribed, placed upon the court file and also made available to the parties. 

    ORDERS DELIVERED

RECORDED:  NOT TRANSCRIBED

1. Now, leaving in the new heading “until further order” in that order, and then there will be an order for certification for counsel appearing for the mother and for the Independent Children’s Lawyer.

2. It is noted:

   a)Pursuant to consent orders entered into by the parties in the hearing before Bell J, the father is now to have two hours supervised time in each fortnight at the D Contact Centre.  He has exercised one period of such supervised time, but, for reasons which are in dispute between the parties, the last two occasions have not been successful, and the child has not spent any time with his father.

   b)The Independent Children’s Lawyer has foreshadowed that they will monitor the situation at that D Contact Centre, subpoena their records and contact notes, if appropriate, and otherwise be diligent about the relisting of the matter before the court, if necessary.

   c)The interim orders were made to the benefit of the child, but having regard to the existing Magistrates’ Court intervention orders, such orders were not pronounced in favour of the mother, and so as to overlap the jurisdiction of the State Magistrates’ Court.

   d)The father has been in court and has heard and understands that he is not to enter upon or loiter in or near to the child’s home or school, and that matter is recorded as a notation to these orders to emphasise that it has been explained to and has been heard by the father.

   RECORDED:  NOT TRANSCRIBED

I certify that the preceding Thirty Seven
(37) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 25 June 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………