BA and GA
[2003] FMCAfam 485
•6 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BA & GA | [2003] FMCAfam 485 |
| FAMILY LAW – Contravention of contact order – whether prima facie case made out. PRACTICE AND PROCEDURE – Representation by unqualified person – whether leave should be granted to permit that representation – affidavits – affidavit of illiterate person. Family Law Act 1975 P & R (No.1)[2002] FMCAfam 65 |
| Applicant: | A B |
| Respondent: | B G |
| File No: | PAM 2995 of 2003 |
| Delivered on: | 6 November 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 3 November 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Samuel |
| Solicitors for the Applicant: | Pappas, J-Attorney |
The Respondent appeared on her own behalf.
ORDERS
In respect of count number 1 of the Application filed on 25 July 2003 alleging that the Respondent did on 6th and 20th April 2003 contravene Order 4(a) made by consent on 21st February 2002, the allegations are found proved.
In respect of count number 2 of the said Application alleging that the Respondent contravened Order 4(d) made by consent on 21 February 2002, the allegation is found proved.
The Respondent has not proved that she had a reasonable excuse for the above contraventions.
In all other respects the application is dismissed.
UNTIL FURTHER ORDER
All contact pursuant to Order 4(a) of the Orders made on the
21st February 2002 is to take place at the home of the paternal grandparents.Telephone contact pursuant to Order 4(d) of the Orders made on the 21st November 2002 is to recommence on the 12th November 2003.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2995 of 2003
| A B |
Applicant
And
| B G |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of a little girl called A F B, who was born on 7th April 2000, for orders against the mother for alleged contraventions of contact orders made by consent in the Family Court. The father says that the mother has contravened these Orders, which were all made on 21st February 2002.
The Orders that the father says that the mother has contravened are:
(a)Order 4(a), which provides for face to face contact each alternate week;
(b)Order 4(d), which provides for telephone contact each alternate Wednesday;
(c)Order 7, which provides that the parties should advise each other of any change of address; and
(d)Order 8, restraining the parties from taking the child overseas.
The father alleges that the mother has contravened Order 4(a) on thirty occasions between 12th May 2002 and 18th June 2003. He says that the mother has never arranged for the child to contact him by telephone since the orders were made on 21st February 2002. He says that he does not know where the mother and the child reside, nor does he know their telephone number. Finally, he believes that the mother travelled overseas between December 2002 and some time in January 2003, and he says that he is:
“unaware as to whether or not the child accompanied the mother overseas”.
The mother has denied all the breaches.
Background
The parties were married on 24th November 1999. The child A was born on 7th April 2000. They separated in about October 2001. The mother says that the father left and took the child with him. The mother commenced proceedings in the Family Court and, on 10th October 2001, obtained an interim order that A should reside with her and a Recovery Order requiring the child’s return to her. The mother deposes in her affidavit sworn on 29th August 2003 that she collected the child at the Police Station at B in the Australian Capital Territory in October. She also says that the father had no contact with the child until February 2002.
The consent orders that are the subject of this application were made on 21st February 2002. Some contact took place after that, but there were incidents in April 2002 that seem to have led to a breakdown in the contact arrangements.
The father resides in the ACT. The mother resides in S.
Representation
When the matter came before the Court for hearing, the father was represented by a solicitor. The mother was not legally represented.
The mother sought to have her fiance appear for her in the proceedings. He is not a lawyer and is therefore not entitled to appear without the leave of the Court. Mr Samuel, who appeared for the father, opposed the application.
Section 44 of the Federal Magistrates Act 1999 (Cth) provides that:
A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:
(a)under the Judiciary Act 1903, the other person is entitled to practice as a barrister or solicitor, or both, in a federal court; or
(b)under the regulations, the other person is taken to be an authorised representative; or
(c)another law of the Commonwealth authorises the other person to represent the party.
There are no regulations that are relevant. There is no right under the Family Law Act for a party to be represented by a person who is not a lawyer. The only way that an unqualified person can appear for a party before the Federal Magistrates Court is by leave of the Court.
The question of the power of the Court to grant leave to appear was dealt with extensively in a most helpful judgment by Driver FM in
P & R (No.1)[2002] FMCAfam 65, stated the proposition that the Court enjoyed an inherent power to permit unqualified persons to appear notwithstanding section 44 of the Federal Magistrates Act. Federal Magistrate Driver stressed that this is a different role than that performed by a litigation guardian or “next friend”.
It is clear that there is a power to allow a “McKenzie friend” who is permitted to sit at the bar table and offer quiet advice and assistance to a party, while not acting in any way as an advocate. This concept is well established since the decision in the English case of McKenzie v McKenzie [1970] 3 All ER 1034; 3 WLR 472. In this case, as in P & R (No.1), the mother did not require the services of a litigation guardian. She sought the services of an unqualified advocate, who cannot appear without leave of the Court.
In P & R (No.1), Driver FM stated some general principles which I believe, with respect, are of general application in this Court:
“The power to grant leave to an unqualified advocate is used sparingly. There are good reasons why that is so. First, the general restriction of the right of appearance to parties and qualified persons seeks to ensure that the court has the assistance of either parties who know their case or qualified legal practitioners who can make informed submissions or assist the court. In addition, …legal practitioners have ethical duties both to their clients and to the court, while unqualified persons are not in the same position. Further, a legal practitioner can be expected to understand the difference between acting on instructions and acting without instructions. There is a real risk that an unqualified advocate will stray across the line and take over the running of the case.”[1]
[1] Paragraph 8
Further in the judgment, Driver FM pointed out that the grant of rights of audience in courts to unqualified persons is ordinarily regarded as exceptional and for use when legal representation cannot be obtained:
“Clearly, the discretionary power should not be exercised as a matter of course. This Court, like the Family Court, is a court exercising federal judicial power under Chapter III of the Constitution. The exercise of a general discretion to permit unqualified persons to appear in this Court would extend the discretion beyond the boundaries that arise from s. 44 of the Federal Magistrates Act and would unreasonably intrude into judicial organisation.”[2]
[2] At Paragraph 9
The case of Cooke v Stehbens (1998) 24 Fam LR 5; (1999) FLC 92-839, provides an example of the rare occasion when a Court exercising federal jurisdiction would exercise a discretion to allow an unqualified person to act as an advocate for a party. In that case, an appeal from an interim contact order made in the Family Court, the Full Court granted the application by a party that her mother not only act as a McKenzie friend but to be an advocate for her, going beyond the traditional role of a McKenzie friend of “taking notes, quietly making suggestions and giving advice” (at page 85, 515).
The special circumstances of the case that persuaded the Full Court to grant that application were:
·The represented party did not object;
·The Court’s observations of the party led their Honours to the view that she was unable to represent herself effectively by virtue of her emotional state; and
·An application for legal aid would have necessitated an adjournment which, in the Court’s view, would not have been in the best interests of the children concerned.
The Court made it clear that “This was not to be taken as any precedent, either in future hearings or in this matter or in the law generally, and such permission was strictly as a result of the special circumstances of this case.”[3]
[3] Ibid.
In the matter before me, I did not consider that any special circumstances had been shown. Clearly, the mother lacked confidence in her ability to present her case effectively. She is of Filipino by birth, and English does not appear to be her first language, but she did not seek the services of an interpreter. Further, the unqualified person whom she sought to have appear for her was her fiance, who was referred to in both the father’s affidavit material and her own as having been involved in an altercation with the father on 14th April 2002. The fiance would hardly be in a position to offer impartial advice to the respondent.
Affidavits by an illiterate person
The applicant’s case got off to a bad start. When he was called to give oral evidence, he gave his name and gave his occupation as “illiterate”. The applicant relied on two affidavits, both of which had been prepared by his solicitor in C. Neither affidavit complied with the rules, in that there was no certificate as required by Rule 15.27(1).
Rule 15.27(1) of the Federal Magistrates Court Rules 2001 states:
(1)If the person making an affidavit is illiterate, blind, or physically incapable of signing it, the person before whom the affidavit is made must certify in or below the jurat that:
a)the affidavit was read to the person making it; and
b)the person seemed to understand the affidavit; and
c)in the case of a person physically incapable of signing, the person indicated the contents were true.
Sub-rule (3) provides that if a certificate of the type required by sub-rule 1 does not appear on the affidavit, it may not be used unless the Court is satisfied that the affidavit was read to the illiterate person and her or she seemed to understand it.
In the circumstances, I stood the matter down so that Mr Samuel, who appeared for the applicant, could read the affidavits to the applicant and arrange for them to be re-affirmed with the appropriate certificate. I make it clear that the solicitor who appeared on the day was not the solicitor who originally drafted the affidavits and before whom the affidavits were originally affirmed.
After a considerable delay, the hearing resumed.
Prima facie case
At the conclusion of the applicant’s evidence, it became clear that there was no evidence upon which I could be satisfied to the requisite standard in respect of the third count, the allegation that the mother’s address and telephone number had not been provided, or in respect of the fourth count, being the allegation that the mother may have taken the child out of the country without consent.
The applicant’s evidence was to the effect that he did not know the mother’s address or telephone number. That is not, to my mind, anywhere approaching proof that the mother had changed her address and telephone number without informing the father.
The fourth count was never capable of being established. The allegation that appeared in the father’s application was that “The Father is unaware as to whether or not the child accompanied the Mother overseas.” The evidence in support of that allegation appeared in paragraph 22 of the father's affidavit originally affirmed on 11th July 2003, where he says:
“I can only assume the Respondent travelled overseas with A in 2002 until the 23rd February, 2003, given the length of time the Respondent was overseas.”
Quite clearly, even taking the applicant’s case at its highest, such evidence could never be capable of proof on the balance of probability that the child was ever taken out of Australia in contravention of a Court order.
Conclusions
The father’s evidence was vague, to say the least, and he frankly told the Court that he was “not much good with dates”. Of the thirty occasions when the father alleged that the mother denied him contact as provided by Order 4(a), there were only two occasions about which the father gave credible evidence that he had driven to S for contact and the mother failed to attend the meeting place with the child. Those occasions were the 6th and 20th April. In each case, the mother confirmed those occasions in cross-examination, saying that she “wanted to change the order”. The mother admitted that she had not made any application to change the order.
The mother admitted in cross-examination that there had been no telephone contact this year. She said:
“I stopped calling on the telephone because he abusing me.
I made a few calls last year.”
I am satisfied that the mother has failed to make the child available for face to face contact on the two occasions in April 2003 and that she has not made any attempt to facilitate telephone contact in 2003. I am not satisfied that a desire to vary orders said to have been in existence before 6th April 2003 but not acted upon at any stage constitutes a reasonable excuse. I am not satisfied that an allegation of abuse over the telephone in 2002 is a reasonable excuse for making no effort to facilitate telephone contact at any time in the year 2003.
The evidence, from the mother’s own admissions, is that she has not complied with the orders to which she consented. I find the allegations of failure to make the child A available for contact on 6th and 20th April 2003 proved, and I find that the mother has contravened Order 4(d) by not making any effort to telephone the father for the purpose of telephone contact between 1st January and 25th July 2003. No reasonable excuse has been made out for those contraventions.
It is for these reasons that I make the Orders set out at the commencement of this decision.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 5 November 2003
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