ASO and TP - [2007] FMCAfam 610

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ASO & TP

[2007] FMCAfam 610

FAMILY LAW – Contravention – meaning of “spending time”.

Family Law Act 1975 (Cth)

Applicant:

ASO

Respondent:

File number:

ADM 1538 of 2006

Judgment of:

Simpson FM

Hearing dates:

7, 8, 9 August 2007

Date of last submission:

8 August 2007

Delivered at:

Adelaide

Delivered on:

9 August 2007

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Counsel for the Respondent:

Ms H.A. Leeson

Solicitors for the Respondent:

Adey Lawyers

ORDERS

That the applicant father is convicted on his plea of guilty to the first count in the amended contravention application filed on 5 July 2007, (“application”).
By way of penalty the father enter into a recognisance in the sum of $1000 to operate for a period of 24 months and that it be a condition of that bond that he comply with all parenting orders made by this court.
That the applicant father pay the respondent mother her costs of the application fixed in the sum of FOUR THOUSAND TWO HUNDRED AND FIFTY DOLLARS ($4250) which sum is to be paid to the trust account of Adey Lawyers.
That paragraph 3 of the second set of orders made on 5 April 2007 be discharged and dismissed.
That until further order the father be and is hereby restrained from ‑
(a)attending upon or in the vicinity of any residence, child care facility or school at which the child may from time to time reside or attend;
(b)contacting or from attempting to contact the child by any direct or indirect means, save and except as provided for in these orders - namely, that the father be permitted to communicate with the child by written communication, addressed to the mother care of the mother's solicitor's address, namely Adey Lawyers, level 3, 55 Gawler Place, Adelaide, SA 5000, which communication may enclose with it any photograph or gift that the father wishes to provide to the child.
That the father use his best endeavours to attend a course run by Anglicare SA titled Kids Are First.
The matter will be listed for trial on Thursday, 7 February 2008, with two days set aside.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADM 1538 of 2006

ASO

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by TP (“the mother”), the mother of MAP against the child's father, ASO (“the father”), for contraventions by him of an order of the Federal Magistrates Court made on 5 April 2007.
The mother's amended application was filed on 5 July 2007. In her application the mother alleges the following four contraventions. Firstly, that on 9 April 2007, at approximately 2.30 pm, the father attended at the mother's home without the mother's consent and forcibly spent time with the child of the relationship, and in contravention of paragraph 3 of the order of the Federal Magistrates Court dated 5 April 2007, wherein the father is restrained from spending time with the said child.
Secondly, that on 15 April 2007, at 3 pm, the father, without reasonable excuse, attended at the mother's home without the mother's consent and attempted to forcibly spend time with the child of the relationship, and in contravention of para.3 of the order of the Federal Magistrates Court dated 5 April 2007, wherein the father is restrained from spending time with the said child.
Thirdly, that on 1 May 2007, at 6.25 pm, the father, without reasonable excuse, attended at the mother's home without the mother's consent and attempted to forcibly spend time with the child of the relationship, and in contravention of para.3 of the order of the Federal Magistrates Court dated 5 April 2007, wherein the father is restrained from spending time with the said child.
Fourthly, that on 13 May 2007, at 10.30 am, the father, without reasonable excuse, attended at the mother's home without the mother's consent and attempted to forcibly spend time with the child of the relationship, and in contravention of para.3 of the order of the Federal Magistrates Court dated 5 April 2007, wherein the father is restrained from spending time with the said child.
The order allegedly breached was para.3 of orders made by a federal magistrate on 5 April 2007. The federal magistrate's orders were as follows:
Upon noting:
(a) That the father did not comply with the request to undertake drug testing within 24 hours of receiving the request to do so, and further noting that he undertook such testing 23 days after receiving the request to do so;
(b) That the child has been hospitalised recently with asthma, and has ongoing requirements of monitoring and treatment;
(c) The allegations of the cultivation of illicit drugs;
(d) That the father, on the last occasion the matter was before the court, failed to advise the court of allegations in respect of the cultivation of illicit drugs, having deposed in his affidavit that he was not involved and was free from alcohol and illicit drugs.
THE COURT ORDERS UNTIL FURTHER ORDER:
(1) That the orders made today in the father's absence are hereby discharged.
(2) That the operation of paragraph 3 of the orders made on 20 October 2006 in respect of the father spending time with the child, be suspended.
(3) That the father be restrained, and an injunction is hereby granted restraining him, from spending time with the said child.
(4) That the application of the mother filed on 14 March 2007 and the response filed by the father on 2 April 2007 do otherwise stand dismissed.
(5) That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in annexure A, which forms part of these orders.
Paragraph 2 of the subject orders refers to orders made on 20 October 2006 in respect of the father spending time with the child. Paragraph 3 of the orders of 20 October 2006 was as follows:
(3) Upon gaining acceptance into the said service the father spend time with the child for two hours on alternate weekends at times to be nominated by the service and supervised by a worker from that service and to commence on a date to be nominated by that service.
The service referred to in that order is the children's contact service at Hindmarsh. The effect of paragraph 2 of the orders of 5 April 2007 was that the father no longer had an order in his favour providing for him to spend time with the child.

Plea

At the commencement of this contravention hearing I read out to the father each of the four charges and requested a plea from him in relation to each. After some initial uncertainty the father ultimately pleaded guilty to the first and fourth charges and not guilty to the second and third charges.

Evidence

I turn to the evidence from the mother. The mother's evidence‑in‑chief substantially comprised two affidavits: her affidavit sworn and filed on 4 May 2007 "the first affidavit" and her affidavit sworn on 5 July 2007 and filed on 6 July 2007 "the second affidavit".
In relation to the first charge the mother said, in the first affidavit, that on Monday 9 April 2007, which was Easter Monday, she was at her home address when she heard someone knock at her front lounge room window at approximately 2.30 pm. She thought it might be her mother and therefore, without checking further, went to the front door and opened it. She there saw the father standing at her front door. She said to him, "No, you're not allowed to be here." She says that the father was crying and shaking and says that she did not open the screen door.
She said that their child then came to the front door and was seen by the father. The father showed the child chocolate Easter eggs that he had in his possession. The father also produced a jacket that he had purchased as a gift for the child. The child walked out through the screen door and began to interact with the father. The mother says that the father then said, "I'm here. I thought about it and I decided I would risk a hundred‑dollar fine and come and see you." The mother says that she said, "There's a court order that says you are not allowed anywhere near us." She says that the father did not respond. The father kept on saying, "I just want to see the child," whom the mother knew to be the child of the relationship; the father carried on saying, "and I just wanted to give him some presents."
The father then produced various toys for the child. The father and the child started opening the toys together. The mother says that she was extremely concerned for her safety and was frightened by the father's appearance at her home and by his general demeanour. She was extremely concerned that the father may attempt to abduct the child. She did not want to raise the ire of the father any further and therefore did not intervene during the period of time that the father spent with the child.
The mother says further that the child was naturally interested in the chocolates and toys that the father had produced but the child did not pay much attention to the father. She says that she felt powerless to intervene as she did not want to escalate the situation. She therefore stood and watched the father and child for a period of approximately an hour. She eventually asked the father to leave and said to him, "This is illegal and I want to go inside. You have to leave." She says that the father did not prevent her from returning inside with the child, after which she closed the front door and the father left.
The mother says that she reported the father's attendance at her home to the South Australia Police in respect of the father breaching an existing domestic violence restraining order. A copy of her statement to the police was annexure A to the first affidavit. The statement shows that the mother reported the events of 9 April to the police on 15 April 2007. The statement to the police was consistent with the evidence on the topic that the mother deposed to in her first affidavit and in her oral evidence in court.
In relation to the second charge, the mother says in her first affidavit that she was home on Sunday, 15 April 2007, at approximately 3 pm, in company with her child. They were in the lounge room when they heard a knock at the front lounge room window. She says that the window was covered with venetian blinds which were closed at the time. She and her son peeked through the blinds and saw the father standing in front of the window. She says that he was standing alongside the window and facing the front door of the home.
The mother says that she immediately felt terrified at seeing the father. She noticed that his car was parked across the road from her home. She says that she grabbed her child and ran into the backyard of her home. She says that the backyard is only accessible through a roller door which is locked and the side gate which is also locked. She says that she and the child stayed outside for approximately 10 minutes. She says that when she went back inside and checked through her bedroom window she could see that the father's car was gone from the street.
The mother says that a couple of hours after this incident she received a telephone call on her home telephone from the father. She says that he sounded extremely angry. He demanded to see the child. She says that she told him that he could not do so. He then told her that he was angry at the court order made by the Federal Magistrates Court on 5 April 2007. She says that he was "screaming down the telephone at her". She heard the father say words to the effect of "I'll support any Muslim terrorist organisation that comes here to bomb the fascists in the court who stop the fathers from seeing their sons." She says that she terminated the phone call immediately after those words were spoken. She says that she felt complete terror as a consequence of the father's behaviour.
The mother says that she reported the father's conduct of 15 April 2007 to the South Australia Police, as the father continued to be in breach of a domestic violence restraining order. She says that she did so on 24 April 2007. She exhibited to her first affidavit a copy of the police report dated 24 April 2007. Again the mother's statement to the police was consistent with the evidence that is contained in her affidavit of

5 May 2007 and the evidence that she gave orally in court.
In relation to the third charge, the mother says that she was home on Tuesday, 1 May 2007 at approximately 6.25 pm, in company with her child. The mother says that the father again attended at her home and knocked at the front screen door. The mother says that she did not initially realise that it was the father and called out "Who is it?" She says that the father replied, "T, it is me." Realising that it was the father, the mother said, "Go away." She did not answer the door.
The mother says that she took the child to his bedroom and telephoned the South Australia Police. She requested that they attend her home. She looked out of the window and saw the father's motor vehicle parked outside her home. After some minutes she looked again and the father's motor vehicle was gone. She says that the South Australia Police attended and she reported the father's conduct to them. She was unable to produce a copy of her statement to the police on this occasion as a copy had not been provided to her by the South Australia Police Department.
In relation to the fourth charge, the wife says in her affidavit filed on 6 July 2007 that at approximately 11.30 am on Sunday, 13 May 2007, which happened to be Mother's Day, she and the child were playing in the front yard of her home. The mother says that she saw the father drive his motor vehicle to outside the front of her home and to alight from the driver's door. She says that he started to walk towards she and their son. The mother says that she was immediately shocked and frightened by the father's behaviour. She says that she told the father to leave, after which she immediately took the child inside the home and shut the front door. The father then left.
The husband cross-examined the wife and initially was focusing his attention on the fact that the wife did not lodge complaints with the police in relation to the first and second incidents until many days after those events had occurred. He also put to her that he did not visit her home on 15 April or 1 May 2007 as deposed to by her. The wife was unshaken by his cross-examination.
The husband elected to give evidence. He did not have any evidence by way of affidavits. He was unrepresented and therefore gave his sworn evidence by making a statement, after which I asked a number of questions aimed at eliciting from him evidence in relation to the relevant events as I saw them.
In his evidence-in-chief the father was prepared to admit that on 9 April and 13 May 2007 he breached order 3 of the orders of 5 April 2007 by attending the mother's home when she and the child were present. He denied breaching the order on 15 April 2007 and 1 May 2007 as he did not visit the mother's home on those days, or so he says.
The father gave evidence that he felt his meeting with the mother and child on 9 April 2007 had gone rather well. He said that he was present for four hours. He said that he felt pleased that there were no arguments and he felt that he, the mother and the child had all got on well.

Findings

This action is brought pursuant to division 13A of Part VII of the Family Law Act 1975. The standard of proof to be applied in determining matters in proceedings under this division is the ordinary civil standard; namely, the balance of probabilities.
Having heard evidence from the mother and the father I am satisfied on the balance of probabilities that events occurred as the mother said. The mother had a clear recollection of events that happened over the two months or so during which the alleged contraventions occurred. The uncontradicted evidence by the mother that on 24 April 2007 she reported to police that the father had visited her home on 15 April 2007 is powerful evidence that this visit occurred on the day that she mentioned. It was not put to her in cross-examination that what she said to police on 24 April 2007 was a fabrication; instead, the father concentrated his cross-examination on the fact that the mother did not report this visit to her home immediately after it had occurred.
The father's evidence was unsatisfactory. He did not have a clear memory of the dates that he visited the mother's home. He did not have a clear recollection of the series of events that occurred on the occasions that he could remember visiting. On his version of events he visited the mother on 9 April and 13 May 2007; that is, the first and fourth of the charges. So the period between those two visits that the husband deposes to is nearly five weeks.
Since the father thought that the meeting on 9 April 2007 had gone so well, I believe it is more probable than not that he was emboldened thereby to attend more regularly than he has deposed to. I believe that he attended the wife's home on 15 April, 1 May, 13 May 2007 as deposed to by the wife.
In summary, I did not find the husband's evidence at all credible.

I accept the mother's evidence wherever there is conflict with the father's evidence and I make findings of fact on the basis of the mother's evidence. It does not, however, follow that in accepting what the mother says about the four occasions that the father visited her home that I find all charges proven.

Are the charges proven

Section 70NAC of the Family Law Act 1975 (“the Act”) relevantly provides that:
A person is taken for the purposes of this division to have contravened an order under this act affecting children if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order.
In the present circumstances the question is whether the father "intentionally failed to comply with the order" on the occasions alleged. To determine that question it is necessary to closely examine the terms of the order allegedly breached.
The order is expressed in an unusual way in that it restrains the father from "spending time with the child". The Act uses the expression "spending time" on numerous occasions. (See in particular Sub-s.64B(2)(b); 60CC(4); 65DAA; 65N; 111CW.) The expression is consistently used on those occasions in a facilitative sense rather than the prohibitive context that it is used in the order allegedly breached. That fact does not mean that an order so made is not validly made and therefore may not be enforceable. In my view the present order is valid and enforceable. The question is, what does it mean?
In the present circumstances, a person can be said to "spend time" with a child when the person and the child are not only in close proximity to each other but have the ability to communicate with each other by actions or words. I do not say that the meaning that I give to the words is applicable in all circumstances: in a different case there may be other matters that should be taken into account. In the present circumstances proximity and the ability to physically and verbally communicate seem to me to be important. For the person and the child to be spending time together, as envisaged by the Act, the person and the child must be able to talk to and have physical contact with each other.
In relation to the first charge and on the basis of the facts as I have found them, the father clearly is in breach of the order restraining him from spending time with the child. He was in close proximity to the child without there being any suggestion that his physical or verbal communication with the child was in any way impaired.

In relation to the second and third charges, in my opinion, on the basis of the mother's evidence and the facts as I have found them, the father did not spend time with the child on those two occasions. He may have been attempting to spend time with the child but he did not do so. I have not been provided with any authority that suggests that attempting to spend time with a child can be a breach of such an order. In fact, sub-s.70NAC(a)(i) of the Act is expressed in terms of the person failing to comply with the order without any suggestion that an attempt to do something that is a contravention of the order in itself is itself a contravention. I therefore find that counts 2 and 3 are not made out.
In relation to count 4, the father has pleaded guilty to that count. Bearing in mind the fact that the father was unrepresented at the contravention hearing, in my view it would not be proper for me to find the matter proven simply on the basis of the father's plea of guilty. If I am not satisfied that on the evidence the father is guilty of the contravention alleged I should not make such a finding.
Had this order been in terms of the father being restrained from entering upon or remaining upon or loitering near the premises, or, alternatively, restraining him from attending upon or being in the vicinity of the mother's residence or the child's school, I would have had no hesitation in finding that the order was breached. I cannot find, however, that the father can be said to have spent time with the child on 13 May as alleged. It fell short of spending time. I therefore decline to record a contravention in relation to the fourth charge.
On the evidence before me my finding that the father breached the Court order as alleged in the first charge, his other attempts to spend time with the child in contravention of the order and on the basis of the provisions of Division 13A of the Act, I find that the father has shown a serious disregard for his obligations under the primary order and therefore find that this is a serious contravention. I make, therefore, the following orders.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Simpson FM

Associate: Ms J Davey

Date: 24 August 2007