C and G
[2002] FMCAfam 340
•11 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & G | [2002] FMCAfam 340 |
| FAMILY LAW – Children – contact – orders – contravention – family violence issues – powers of court – name of child – procedural fairness – applicant given opportunity to withdraw application – parenting order made without attendance on a family and child counsellor. |
Family Law Act 1997, ss.65F; 70NJ
Neal v R (1982) CLR 305
Perryman v Perryman (1993) 17 Fam LR 200;FLC 92-433
| Applicant: | RJC |
| Respondent: | STG |
| File No: | PAM 351 of 2000 |
| Delivered on: | 11 October 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 1 October 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant in person: | Mr C |
| The Respondent in person: | Ms G |
ORDERS
The contraventions by the Respondent on 4 November 2001 of Order 9 made on 5 June 2001 are found proved.
The Respondent has not proved that she had a reasonable excuse for the said contraventions.
The Application is dismissed in respect of the allegation that the Respondent contravened Order 6 made on 5 June 2001.
Pursuant to s.70NJ(3)(b) of the Family Law Act, the Respondent is required to enter into a bond without surety or security to be of good behaviour for a period of 12 months and comply with any current parenting order.
Pursuant to s.70 NJ(3)(c) of the Family Law Act:
(a)All contact orders relating to MWC born 27 August 1986 are vacated;
(b)Orders 3 and 7 made on 5 June 2001 are vacated insofar as they refer to LAC born 5 April 1988; and
(c)Order 3 made on 5 June 2001 is suspended in respect of the child DKC born 2 December 1990 until 24 December 2002.
(d)Subject to Order 5, the Applicant is to notify the Respondent in writing on or after 24 December 2001 of his intention to resume contact with the said child DKC.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 351 of 2000
| RJC |
Applicant
And
| STG |
Respondent
REASONS FOR JUDGMENT
Application
This is an application to deal with the Respondent for three breaches of Orders made by this Court on 5th June 2001. The Orders said to have been breached are Orders 6 and 9. Order 6 says:
“The respondent mother shall within 7 days from the date of these Orders authorise the Principal of each school attended by the said children to provide the father with a copy of the children’s school reports as they fall due and inform the father of any school activities which parents are invited to attend.”
Order 9 relates to the children’s surnames:
“The respondent mother is restrained and an injunction is hereby granted restraining her from using or being party to or complicit in, the use of any surname for the said children MATTHEW, L and D other than the names ‘C’ or ‘C-G’.
The allegations are that:
a)on Sunday 4th November 2001 the respondent allowed the child LAC born 5 April 1988 to use the name of LG or L. G “with their mother’s knowledge and their mother’s signature as well”;
b)a similar allegation in respect of the child MWC born 27 August 1986; and
c)the Applicant says that he has not received a copy of the children’s school reports from L High School for the Year 9 yearly report 2001 for M or the Year 8 yearly report for L or any yearly school report from S Street Primary School in respect of the child D.
The Respondent mother denied that she had contravened the Orders.
Background
The parties have been separated since February 1999. There are three children of the marriage:
a)MWC born 27th August 1986;
b)LAC born 5th April 1988; and
c)DKC born 2nd December 1990.
The children reside with the Respondent. The Family Court of Australia made orders that the Applicant should have contact with the children on 14th December 1999, and there has been litigation between the parties about those orders since then. The litigation in this Court led to Orders being made on 5th June 2001. The Respondent now uses the surname of G.
The circumstances that led to the Application before the Court are that the three children were to spend some contact time with the Applicant on Sunday 4th November 2001. An altercation broke out between L and the Applicant, and it was alleged that the Applicant assaulted L by punching him in the nose. It is also alleged that the Applicant punched M several times on the head.
A complaint was made to the Police at MF, and each of the boys made a written statement. Copies of the boys’ statements are annexed to an affidavit sworn by the Respondent on 9th September 2002. The statements show that the boys signed their names ‘LG’ and ‘MG’. The Respondent’s signature appears as a witness on each of the statements.
The Applicant relies on this evidence, fortuitously provided by the Respondent, to support his allegations.
The Applicant was charged by the Police with two counts of assault, and the Police also sought an Apprehended Violence Order on behalf of the three children. The Applicant entered a plea of ‘Not guilty’ and the matters were heard on a defended basis at Campbelltown Local Court on 22nd April 2002.
After the evidence was taken and submissions were made, the learned Magistrate found the charge of assault on the boy L had been proved, but was not satisfied beyond reasonable doubt in respect of the charge relating to the boy M. The Court found that there was “no cause for an (apprehended violence) order in respect of D”. The Court placed the Applicant on a good behaviour bond without recording a conviction in respect of the assault charge and made an Apprehended Violence Order for the protection of the two boys. The Order was for a term of two years and included the requirement “not to approach or contact LC or MC unless in accordance with a court order made after 4 November 2001, or by consent of the child.”
The Applicant appealed against the decisions of the Local Court. That appeal was heard by the District Court of NSW at Campbelltown on 16th September 2002. The Applicant produced a copy of the transcript of the Local Court proceedings but did not have any documents relating to the appeal. He admitted, however, that the appeal “backfired” on him. He told this Court that the District Court dismissed his appeal and extended the term of his good behaviour bond from twelve months to two years. The Court also confirmed the Apprehended Violence Order, which is now in force for a period of two years from the 16th September 2002. The Respondent tendered a copy of that Apprehended Violence Order issued by the District Court at Campbelltown.
Procedural fairness – warning
The assaults alleged were of such a degree of seriousness that it was considered necessary to warn the Applicant that the proceedings could lead to a parenting order being made that would not be in his favour. He was advised that, not only was there the usual risk faced by any litigant that his application would not be successful, but that the proceedings could result in his being placed in a position where he was worse off than he was before (he had already told the Court that his appeal to the District Court had “backfired” on him). As a result, he was given the opportunity to withdraw all or part of his application before the hearing commenced (see Neal v R, (1982) 149 CLR 305, Perryman v Perryman (1993) 17 Fam LR 200; FLC 92-433, followed in Watson & Zahra [2002] FMCAfam ).
The Applicant elected to proceed. He informed the Court that if any amendments were made to the earlier orders, he asked that they applied to the child D as well, so that he would not have to face any more accusations and he did not have to keep returning to court. The Respondent told the Court that she did not want orders made denying to D the opportunity to have contact with the Applicant, saying “He’s still her father. I can’t wipe that out.”
Contravention of an Order
A person who is bound by an order is taken to have contravened that order if (and only if) he or she has intentionally failed to comply with the order or made no reasonable attempt to comply with the order [section70NC(a)]. If the person has a reasonable excuse, he or she bears the onus of proving that excuse [section70NF(1)(ba)].The standard of proof is proof on the balance of probabilities (section 70NEA).
Conclusions
In respect of the two counts alleging that the Respondent contravened Order 9, restraining her from using or being party to or complicit in the use of any surname for the children other than ‘C’ or ‘C-G’, the Applicant provided no evidence other than an assertion of the fact in paragraphs 1 and 2 of his affidavit sworn 13th May 2002. The Respondent, however, in her affidavit, annexed copies of the statements made by the two boys on 4th November 2001, where they clearly signed their names using the surname ‘G’. The statements show that the Respondent was present on each occasion.
Her evidence, in paragraph 7 of her affidavit, was that she instructed both children to sign their names as C. She went on to say “I did not witness what they actually sign and had no reason to check.” An examination of the boys’ statements shows, however, that the Respondent signed each page of each statement immediately below the children’s signatures. It is difficult to see how she could not have noticed.
The Respondent did not claim that she had a reasonable excuse for the contraventions. I find the two allegations proved.
Turning to the allegation that the Respondent contravened Order 6 by not authorising the Principals of the children’s schools to provide copies of the children’s school reports, the evidence provided by the Applicant is that he did not receive copies of the 2001 annual school reports from L High School for the two boys. He says that he received a copy of D’s Semester One report for 2001 from her school.
In reply to that allegation, the Respondent deposes in her affidavit that the children’s solicitor arranged to fax a copy of the Court orders to the relevant schools on either the 6th or 7th June 2001. She said that that she attended each school on 7th June and was informed that the schools had already received a copy of the court orders.
I note that the Applicant concedes that D’s school did send him a copy of the first semester’s report.
I am not satisfied that the Respondent failed to advise the schools as she was required to do. She has given evidence by affidavit that she did, and this evidence was not challenged by the Applicant. His challenge to her affidavit was confined to objecting to two of the documents that were annexed to the affidavit. In each case, his objection was upheld.
The Application is dismissed in respect of Count 3.
Orders as a consequence of the finding of two contraventions
There have been previous contraventions of the interim orders made between the parties. I am satisfied that the Court should deal with this matter under stage 3 of the parenting compliance regime, by making orders under the provisions of section 70NJ(3) of the Family Law Act:
“The orders that are available to be made by the court are:
a) if the court is empowered under section 70NK to make a community service order – to make such an order; or
b) to make an order requiring the person to enter into a bond in accordance with section 70NM; or
c) if the person has contravened a parenting order – subject to subsection (5), to make an order varying the order so contravened; or
d) to fine the person not more than 60 penalty units; or
e) subject to subsection (6), to impose a sentence of imprisonment on the person in accordance with section 70NO.”
The Applicant conceded that a prison sentence would be inappropriate. The Respondent does not have the funds to pay a fine, and I am not satisfied that a community service order is appropriate.
I note that the orders set out in section 70NJ(3) are exclusive. The Court can only make one order for each contravention, thus, if only one contravention is found, the court does not have the power to fine the person as well as requiring the person to enter a bond, for example. At the same time, the Court has no power to make no order; the Court must make the order or orders that the Court considers to be the most appropriate in the circumstances [section 70NJ(2A)].
The contraventions are not of the most serious nature, and a punitive order directed towards the Respondent would not be appropriate.
I consider that an order placing the Respondent on a bond to be of good behaviour would be an appropriate order.
I am also satisfied that the very circumstances of 4th November 2001, the finding of an assault and the making of an Apprehended Violence Order in respect of the two boys, calls for a variation of the existing orders. The transcript of the Local Court proceedings shows that the learned Magistrate had sufficient grounds to justify the finding of guilt in respect of the charge of assault on the child L and to justify the making of an Apprehended Violence Order. I note that the Applicant’s appeal to the District Court was unsuccessful.
It is inappropriate that there should be an order of the District Court restraining the Applicant from approaching or contacting the two boys whilst there is still in force an order by this Court setting out the arrangements for the Applicant’s contact with those same children. In my view, a variation of the parenting orders is called for.
Section 65F(2) places a restriction on the Court making parenting orders (other than orders by consent or orders until further order) unless the parties to the proceedings have attended a conference with a family and child counsellor. In this case, I am satisfied, pursuant to the provisions of section 65F(2)(b) that there are special circumstances that make it appropriate to make a parenting order even though the parties to the proceedings have not attended a conference with a family and child counsellor. The special circumstances that I find are the evidence of violence by the Applicant towards the boys L and M and the existence of the Apprehended Violence Order. Whilst I note that the Campbelltown Local Court acquitted the Applicant in respect of the charge of assault on M, the standard of proof in criminal proceedings is the higher standard of beyond reasonable doubt. The evidence before the Local Court is sufficient, to my mind, to satisfy the Court that violence was used, according to the civil standard.
I consider that the orders for the Applicant’s contact with the children M and L should be vacated. If the Applicant considers that there should be contact orders in respect of the two boys, he will need to make an application to the Court. I do not propose to vacate the contact order in respect of the child D, but I note that the Applicant has not been exercising contact with her since 18th November 2001. The Respondent deposes in her affidavit that D is in fear of her father.
I consider that the contact between the Applicant and D should be suspended until just before Christmas, in the hope that the child’s fears, if any, may pass.
The Respondent should be required to enter into a bond.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.Coutman
Date: 11 October 2002
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