BIDDELL & ERVIN
[2012] FMCAfam 926
•5 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BIDDELL & ERVIN | [2012] FMCAfam 926 |
| FAMILY LAW – Children – parenting orders – contravention of parenting orders – application to deal with respondent for contravention of interim parenting orders. PRACTICE & PROCEDURE – Correct procedure to follow – allegations must be formulated with precision. EVIDENCE – Admissibility – hearsay evidence – first hand hearsay – remote hearsay – weight – balance of probabilities – insufficient evidence. |
| Evidence Act 1995 (Cth) ss.59, 60, 62 Family Law Act 1975 (Cth), Part VII, ss.69ZT, 70NAC, 70NAF, 70NEA Family Law Rules 2004 rr.21.01, 21.02 Federal Magistrates Court Rules 2001 r.25B.02 |
| Smit & Pickworth (1981) 7 Fam LR 387; FLC 91-071 Stevenson v Hughes (1993) 16 Fam LR 443; FLC 92-363 |
| Applicant: | MR BIDDELL |
| Respondent: | MS ERVIN |
| File Number: | SYC 1725 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 August 2012 |
| Date of Last Submission: | 29 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Harris |
| Solicitors for the Applicant: | Essey Legal Pty Ltd |
| Counsel for the Respondent: | Mr Watkins |
| Solicitors for the Respondent: | Watkins Tapsell |
ORDERS
The Application filed on 29 May 2012 alleging contravention by the Respondent of Orders (2) and (4) made on 6 July 2011 and Order 7 made on 21 September 2011 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Biddell & Ervin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1725 of 2011
| MR BIDDELL |
Applicant
And
| MS ERVIN |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of a young boy named [X] claiming that the Mother has contravened interim parenting Orders made by this Court on 21st September and 6th July 2011.
The Orders said to have been contravened are Order 7 of the Orders made by consent on 21st September 2011 and Orders 2 and 4 made by consent on 6th July 2011.
Order 7 made by consent on 21st September 2011 states:
That by 7 days each party shall telephone the Wollongong Contact Centre and do all things necessary to arrange an intake interview.
Orders 2 and 4 made by consent on 6th July 2011 state:
(2)Within 7 days of the date of these Orders the parties shall do all things necessary to apply to the Wollongong Contact Centre to supervise time between the Father & the child & that as soon as a place becomes available at Wollongong Contact Centre the parties shall arrange for the Father to spend time with the child at Wollongong Contact Centre.
…
(4)Once a place becomes available at the Wollongong Contact Centre the Father spend time with the child at the Wollongong Contact Centre each alternate Saturday for 2 hours.
The Alleged Contraventions
By his Application filed on 29th May 2012 the Applicant claims that the Respondent contravened the Orders on an unspecified date in May 2012.
The Applicant has sought to proceed with three counts alleging contravention of the three Orders, although he has only provided one statement relating to all three counts. The Application states that the Respondent, either by phone or through her solicitor, Ms Karen Hardy, has contravened the three Orders in May 2012 in this way:
The mother has obstructed the organisation of time between the father and child, [X][1] at the Catholic Contact Centre by failing to respond in a timely and adequate fashion to the Contact Centre’s staff and specifically by refusal to present the child, [X] for re-orientation.
[1] sic
Curiously, the Applicant has not claimed that the alleged contraventions by the Respondent were without reasonable excuse.
Counsel for the Respondent, Mr Watkins, objected that the statement of the alleged contraventions was flawed and not properly particularised. This led to the Applicant’s solicitor withdrawing an allegation of a contravention of Order (3) made on 6th July 2011 and deciding not to rely on another part of the Statement of the Alleged Contraventions. Once those alterations were made, the parties were directed to proceed with the Application.
Evidence
The Applicant relied on his affidavit sworn on 29th May 2012. His solicitor also tendered in evidence a file produced on subpoena from the Catholic Care Children’s contact Service at Wollongong, where various parts of the file were flagged.
Three documents were tendered in cross-examination of the Applicant by the Respondent’s counsel, Mr Watkins:
a)an email dated 11th December 2011 timed at 6.21am from the Applicant to the Contact Centre, which was copied to the Independent Children’s Lawyer and the solicitor for the Respondent, Ms Hardy;
b)an email dated 11th December 2011 timed at 10.21am from the Applicant to the Respondent’s solicitor and the Independent Children’s Lawyer; and
c)an email dated 21st December 2011 from the Mother’s solicitor to the Applicant and the Independent Children’s Lawyer.
Annexed to the Applicant’s affidavits are a number of documents, including copies of the consent Orders of 6th July and 21st September 2011 and a letter dated 25th May 2012 from the Independent Children’s Lawyer to the Applicant and to the Respondent’s solicitor.
In his affidavit, the Applicant deposed that when he consented to supervision at the Wollongong Centre he was unaware that he would have to sign a policy document “which relied so heavily on ‘sexual allegations’ which would be made by the mother and referred to in a Form 4 filed on 13 July 2011…[2]
[2] Affidavit of Mr Biddell 29.5.2012 at paragraph [8]
The Applicant declined to sign the policy document at the Centre on what he said was 11th December, although his emails dated 11th December 2011 suggest that his visit to the centre may have taken place the day before.
In his email to the Centre which appears to have been sent at 6:21am on Sunday 11th December, the Applicant said:
I WILL NOT SIGN YOUR PAPER WHICH FORCES ME TO HAVE A LESSER QUALITY OF CONTACT WITH [X] THAN WHICH I HAVE HAD OVER THE PAST 12 MONTHS.
Later in his affidavit, at paragraph 20, the Applicant deposed:
When I left the court[3] I immediately began making plans to sign the policy document and arrange time at the Catholic Centre.[4]
[3] The Applicant is referring to a mention on 11 May 2012. The reference to a date is contained in a paragraph that was the subject of a successful objection.
[4] Affidavit of Mr Biddell 29.5.2012 at [200
It appears from the subpoenaed Case Notes that the Applicant signed the policy document on about 15th May 2012. The Applicant’s solicitor referred the Court to a Supervised Contact Service Agreement on the Centre’s file, but it does not appear to be the right document. First, it makes no reference to any allegation raised in a Notice of Abuse and, more importantly, it is dated “14.10.2011”. It seems to have been signed when the Applicant attended an appointment for an intake assessment on that day.
The signed policy document is not in evidence. An unsigned copy forms Annexure MJB 4 to the Applicant’s Affidavit. It is clearly a different document.
The Applicant went on to depose:
On 15 May, Ms L, Case Assessor confirmed that they had a place for [X] and I on Sunday 26 May (two days ago).[5]
[5] Ibid at [21]
Further, the Applicant stated that:
24.On 24 and 25 May I spoke to Ms L’s Manager Mr J who again said that they could not complete the intake and could not provide reasons or anything in writing. He did eventually tell me on 25 May though that [X] needed to have another orientation because six months had passed…
27.My lawyer also spoke to the mother’s lawyer, Ms Hardy who I am told confirmed that it was the mother who was stopping the contact. Ms Hardy told my lawyer that the mother required me to do a parenting course now before contact started – even though this was not a requirement by the centre.[6]
[6] Ibid at [24] and [27]
Annexed to the Applicant’s affidavit is a copy of a letter dated 25th May 2012 from the Independent Children’s Lawyer to the Applicant and the Respondent’s solicitor. Importantly, the letter states:
We note correspondent attached to email communication from Ms Hardy sent on Thursday 24 May 2012 at 11.15 am, being correspondence from Catholic Care Diocese of Wollongong dated 11 April 2012. We have contacted Catholic Care in Wollongong and spoken to Ms L the Coordinator of the Children’s Contact Service who advises us that the last word “permanently” in the first paragraph of that letter was a typographical error and that as far as the Centre is concerned all intake processes have been undertaken and completed including a child orientation for [X] however given that six months have elapsed since the first orientation [X] attended, they are requesting that a new child orientation takes place to ensure that [X] transitions smoothly into the Contact Service.
We agree, as stated in the email communication of Thursday 24 May 2012 from Ms Hardy as mentioned above, that it is the actions of Mr Biddell that have caused delay in the transition into the Wollongong Catholic Care Contact Centre. We note however that when the matter was recently before Scarlett FM, His Honour did not suspend the current interim contact orders. We are advised by Ms L, the Coordinator at the Contact Service that a placement can be made available for this family for supervised contact to commence pursuant to the current contact orders as long as [X] attends the child orientation they have requested takes place.[7]
[7] Ibid Annexure MJB 5
The Applicant also relies on a letter dated 4th June 2012 from the Respondent’s solicitors, Watkins Tapsell, to the Contact Centre. In that letter, the Respondent’s solicitor, Ms Hardy, stated Inter alia:
…The Mother subsequently amended her application to suspend the 6 July 2011 orders pending further investigation. The Father failed to comply with your entry requirements in any event and out client was advised that the file had been closed.
The matter was listed before the Federal Magistrates Court on 11 May 2012 for directions. It was all parties’ understanding that your Contact Centre was unavailable to the parties. Copies of correspondence is[8] referred to below.
The mother did not press for suspension of the 6 July 2011 orders on 11 May 2012 because it was the Mother’s position that the orders were unenforceable, given that the Centre was no longer available.
[8] sic
The letter goes on to state that the Applicant is not to required to undertake a Keeping Kids in Mind course before participating and asks for clarification in writing:
1. Why my client was required to complete the Keeping Kids in Mind Course “as a condition of accessing the service” but the Father in this matter was not subjected to the same requirements; and
2. The position in respect of your service’s availability to these parties and whether or not the file has been closed.
The Applicant gave oral evidence. He conceded that that his time with the child at the Contact Centre did not go ahead because he would not sign the policy document and the Centre said they notify the mother not to bring the child to the Centre. He continued to refuse to sign the document until after he had attended Court on 11th May.
Submissions
Counsel for the Respondent submitted that Order 7 of 21st September 2011 requires the parties to arrange an intake interview. There is no evidence to identify any contravention and the allegation should be dismissed.
As to the allegations of breaches of the orders of 6th July, it was submitted that there had been no particularisation as to what the Respondent had done or had not done. Further, the affidavit evidence is hearsay and no weight should be given to it.
Further, the Applicant had abandoned his claim by:
a)not signing the policy document; and
b)not doing what he was required to do.
Even if the Court were to find a contravention, the Court should exercise its discretion not enforce the orders because of the Applicant’s conduct in not complying with the Orders.
The Respondent referred the Court to the decision of the Full Court of the Family Court in Smit & Pickworth[9] on the issue of contempt proceedings. In that case, the Full Court held:
The importance of formulating the contempt charge with precision and of confining the proceedings to the matters raised in the charge or in any amendment of the charge, has been stressed in a number of cases:…
Moreover, the form instituting any application that a person be dealt with for contempt should contain brief but accurate particulars of the conduct constituting the alleged contempt and not simply a bald statement that an order has been disobeyed.[10]
[9] (1981) 7 Fam LR 387; FLC 91-071
[10] (1981) & Fam LR 387 at 390 per Evatt CJ, Pawley and Ellis JJ
The Applicant’s solicitor, Ms Harris, submitted that no breach of the intake interview was alleged; what was alleged was that the Respondent had obstructed the process and failed to present the child for re-orientation. She submitted that the subpoenaed file of the Wollongong Contact Centre contained ample evidence of breaches by the Respondent of Orders 2 and 4 made on 6th July 2011, referring particularly to page 20 of the Case notes.
Ms Harris referred the Court to the decision of Fogarty J in Stevenson v Hughes[11], where his Honour endorsed the analysis by Moore J at first instance and said:
It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance.[12]
[11] (1993) 16 Fam LR 443; FLC 92-363
[12] (1993) 16 FM LR 443 at 450
In answer to a question from the Bench, the Applicant’s solicitor conceded that there was no evidence in support of an allegation of a contravention of Order 7 made on 21st September 2011.
The Relevant Law
Applications to deal with a person for contravening a parenting Order are child-related proceedings under the provisions of Part VII of the Family Law Act. Contravention is defined by s.70NAC, and applies both to people bound by the Order and others, who prevent compliance with the Order or aid and abet the contravention of an Order.
Paragraph 70NAC(a) provides that where a person is bound by the order, he or she contravenes the order when he or she has:
i)Intentionally failed to comply with the order; or
ii)Made no reasonable attempt to comply with the order.
In drafting a contravention application, it is usually advisable to specify whether the person intentionally failed to comply or made no reasonable attempt to comply with the order.
In bringing the application, it is necessary for an applicant to show that:
a)there is an order in existence; and
b)the respondent to the application has contravened the order (s.70NEA(1)(a) and (b)).
Once the contravention has been proved, it is up to the respondent to prove that he or she had a reasonable excuse for contravening the order (s.70NEA(1)(c)). It is not required of an applicant to negative reasonable excuse.
The standard of proof for establishing the contravention is proof on the balance of probabilities (s.70NAF(1)). Similarly, once the contravention is established, the determination of whether the person who contravened the order had a reasonable excuse is again the balance of probabilities (s.70NAF(2)).
Because these proceedings are child-related proceedings under Part VII of the Act, certain provisions of the Evidence Act 1995 do not apply, including Parts 3.2 to 3.8, which deal with hearsay, opinion and other matters (s.69ZT(1)). However, the fact that certain material is admissible under this subsection does not give it any more probative value than it otherwise would have. Subsection 69ZT(2) provides:
The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying as because of subsection (1).
The procedure for bringing an Application for contravention of a parenting order is found in Division 25B.1 of the Rules. Rule 25B.02 states:
How to apply for an order
(1)An application must be in accordance with the approved form.
(2)The applicant must file with the application an affidavit that:
(a)states the facts necessary to enable the Court to make the orders sought in the application; and
(b)has attached to it a copy of any order, bond, agreement or undertaking that the Court is asked to enforce or that is alleged to have been contravened.
The approved form is that headed Application – Contravention and refers to Rules 21.01 and 21.02 of the Family Law Rules 2004. Whilst those Rules do not apply in the Federal Magistrates Court, the provisions of Rule 21.02(2) are similar to Rule 25B.02 of the Federal Magistrates Court Rules.
Conclusions
In preparing the Application, the Applicant has adopted the unusual course of making one statement to cover all three alleged contraventions. The statement has been prepared in a regrettably imprecise manner, claiming contraventions by the Respondent at unspecified times during the entire month of May 2012. However, the Applicant was aware that until approximately 15 May, when he signed the Contact Centre’s policy document which he had previously refused to sign, no arrangement could have been made for him to spend time with the child. It is clear that the relevant time period could only have been between 16th and 29th May 2012, the date when the Application was filed.
The statement of the alleged contraventions is couched in vague, generalised terms, which attracted criticism by counsel for the Respondent that it was virtually impossible for the Respondent to answer:
The mother has obstructed the organisation of time between the father and the child, [X][13] at the Catholic Contact Centre by failing to respond in a timely and adequate fashion to the Contact Centre’s staff and specifically by refusing to present the child, [X], for re-orientation.
[13] sic
There is no specific allegation relating to any of the three Orders.
Order 7 made on 21st September 2011 provided:
That by 7 days each party shall telephone the Wollongong Contact Centre and do all things necessary to arrange an intake interview.
To establish a contravention of that Order by the Respondent, it would be necessary to show that the Respondent did not telephone the Contact Centre or do all things necessary to arrange an intake interview. The Applicant’s solicitor conceded that there was no evidence to establish a contravention of that Order. In her submission, the Applicant’s solicitor volunteered that no breach of the requirement to arrange an intake interview was alleged, rather a failure to present the child for re-orientation. Why, then, was it claimed that the Respondent had contravened an order requiring her to arrange an intake interview?
The Applicant’s own evidence established that both parties had made arrangements for an intake interview. If there had not been, no arrangement would have been made for the father to have spent time with the child in December 2011.
The Applicant’s statement of the alleged contravention makes no mention of any failure to comply with that particular Order and no explanation is given as to why or how the Applicant complains that the Respondent contravened that Order. There is no evidence.
The Applicant has not established a contravention of Order 7 made on 21st September 2011.
Order 2 made on 6th July 2011 imposes a similar requirement on the parties as was provided by Order 7 of 21st September. The Order required the parties:
a)within 7 days;
b)to do all things necessary to apply to the Wollongong Contact Centre to supervise time with the child; and
c)when a place became available arrange for the Applicant to spend time with the child at the Contact Centre.
Again, the evidence is that this was done. As in Order 7 of 21st September, the parties clearly did apply to the Contact Centre and a place was found. An arrangement was made for the Applicant to see the child on or about 11th December 2011, but he declined to sign the policy document and the time did not take place.
The evidence does not support the allegation of a breach of Order 2 at all. No such contravention has been made out.
The final Order alleged to have been contravened is Order 4 made by consent on 6th July 2011. That Order says:
Once a place becomes available at the Wollongong Contact Centre the Father spend time with the child at the Wollongong Contact Centre each alternate Saturday for 2 hours.
What has to be shown to establish a contravention of this Order is that:
a)between 1 May and 29th May 2012;
b)a place became available at the Contact Centre; and
c)between 1st May and 29th May 2012 the Respondent did something or did not do something that did not permit the Applicant to spend time with the child.
It will not suffice to show that a place became available in December 2011; the relevant date is in May 2012. There is evidence that a place became available on 26th May 2012. The Applicant deposes in his affidavit that:
21.On 15 May, Ms L, Case Assessor confirmed that they had a place for [X] and I on Sunday 26 May (two days ago).[14]
[14] Affidavit of Mr Biddell 29.5.2012 at [21]
It does not matter that 26th May 2012 was a Saturday rather than a Sunday.
The Applicant’s affidavit continues:
24.On 24 and 25 May I spoke to Ms L’s Manager Mr J who again said that they could not complete the intake and could not provide reasons or anything in writing. He did eventually tell me on 25 May though that [X] needed to have another orientation because six months had passed.[15]
[15] Ibid at [24]
The evidence of the conversations referred to in paragraphs [21] and [24] of the affidavit is, of course, hearsay. Neither conversation took place in the presence of the respondent. Hearsay evidence would normally be excluded under s.59 of the Evidence Act 1995, although it may be admitted under the exception in s.60 if it is relevant for a purpose other than proof of an asserted fact. Hearsay evidence is regarded as unreliable because it is not given under oath and its reliability cannot be tested by cross-examination.
However, the evidence is admissible under the provisions of s.69ZT(1) of the Family Law Act, subject to weight. This evidence is what is known as “first-hand” hearsay, which is conveniently defined by s.62 of the Evidence Act:
(1)A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2)A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
Both Ms L and Mr J presumably had personal knowledge of the fact that a placement was available on 26 May and that the Contact Centre would require that the child undergo a re-orientation before arrangements could be made for him to spend time with the Applicant. As this is first-hand hearsay it is entitled to be given some weight.
The need for the child to undergo a re-orientation is also corroborated by the letter of 25th May from the Independent Children’s Lawyer annexed to the Applicant’s affidavit.
What that evidence establishes is that:
a)there was a place available on 26th May; and
b)the Contact Centre required the child to undergo a re-orientation before arrangements could commence.
What the Applicant needs to show is that it was the Applicant who was, either by her action or inaction, preventing those arrangements from commencing. Here, the Applicant’s evidence is much thinner.
The Applicant deposes at paragraph [27] of his affidavit:
My lawyer also spoke to the mother’s lawyer, Ms Hardy who I am told confirmed that it was the mother who was stopping the contact. Ms Hardy told my lawyer that the mother required me to do a parenting course now before contact started – even though this was not a requirement by the Centre.[16]
[16] Affidavit of Mr Biddell 29.5.2012 at [27]
Mr Watkins submitted that this hearsay evidence should not be given any weight.
The evidence is not first-hand hearsay; it is remote hearsay. Remote hearsay is hearsay which is one or more stages removed from first-hand hearsay. Here, the statement is that person A (the Respondent) told something to Person B (the Respondent’s solicitor) who told it to Person C (the Applicant’s solicitor) who told it to the Applicant. The evidence can be described as “third-hand” hearsay. It is far from the best evidence.
It can be the case that reliance will be placed by a Court on hearsay evidence where a person who made the statement is not available to give evidence. Clearly, the Respondent will not provide that evidence to the Applicant, nor will her solicitor. However, the person who conveyed that information to the Applicant was available to provide that evidence. She was in court the whole time.
Even then, the evidence would still be remote hearsay and inherently unreliable to establish a fact on the balance of probabilities. Under subsection 69ZT(2) it is for the Court to give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act not applying because of s.69ZT(1).
The evidence is so remote and therefore unreliable that it cannot be given any weight.
The letter of 25th May 2012 from the Independent Children’s Lawyer annexed to the Applicant’s affidavit makes no reference of any action or inaction by the Respondent in respect of spending time with the Applicant.
The letter of 4th June 2012 from the Respondent’s solicitors to the Contact Centre makes no mention of any refusal by the Respondent to make the child available for re-orientation. It refers to a belief by the parties in mid-May that the Centre had closed its file because of a refusal by the Applicant to comply with a condition imposed by the Centre and a complaint that the Respondent was required to attend a Keeping Kids in Mind Course but the Applicant appeared to have been exempted.
The Contact Centre’s file notes provide little assistance, especially page 20, to which the Court was referred by the Applicant’s solicitor. The best that the file notes show is on page 19, a note taken by someone that said:
LWP[17] SOL[18] advised she would seek further clarification from her client but that they were of the opinion that STP[19] should complete the KKIM[20] prior to the commencement of SC.[21] Coordinator that this was not CCCS policy and that at this point STP had completed compulsory requirement of the intake. Coordinator confirmed that CCCS required to know this ASAP so that we could either proceed or withdraw service for time being.
[17] “Live with Parent”
[18] “solicitor”
[19] “Spend Time Parent”
[20] “Keeping Kids in Mind”
[21] Presumably this means “supervised contact”
This evidence falls far short of showing that the Respondent contravened the order on 24th May or a later date in May.
The Applicant has not established that the Respondent contravened Order 4 made on 6th July 2011.
As none of the three alleged contraventions of the Orders have been made out the Application will be dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 31 August 2012
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