CALLAHAN & CALLAHAN
[2014] FCCA 2930
•12 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALLAHAN & CALLAHAN | [2014] FCCA 2930 |
| Catchwords: EVIDENCE – Admissibility of evidence – hearsay – second-hand hearsay – representation made by a child – weight of evidence – whether sufficient to establish a prima facie case. EVIDENCE – Admissibility of evidence – illegally obtained evidence – contravention of an Australian law – recording of telephone conversation without the consent of one party – where child recorded telephone conversation with his mother without her knowledge or consent – recording passed on to father – breach of Surveillance Devices Act 2007 (NSW), s.11 – evidence excluded. PRACTICE AND PROCEDURE – Procedural fairness – where respondent not represented – where respondent required to establish reasonable excuse for contravention – where respondent entitled to lead evidence to deny contravention of orders. PRACTICE AND PROCEDURE – Procedural fairness – where respondent admitted two contraventions – whether allegations constitute a contravention of a court order. |
| Legislation: Evidence Act 1995 (Cth), s.138 Family Law Act 1975 (Cth), ss.64B, 69ZV, 70NAC, 70NAE, 70NAF, 70NEA, 70NEB, 70NEB, 70NEC Surveillance Devices Act 2007 (NSW), s.11 |
| Cases cited: Caballes & Tallant [2014] FamCAFC 112 Ramsay & Wade [2014] FCCA 1431 SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 |
| Applicant: | MR CALLAHAN |
| Respondent: | MS CALLAHAN |
| File Number: | SYC 1855 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 21 November 2014 |
| Date of Last Submission: | 21 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Coady |
| Solicitors for the Respondent: | Jodhi Coady Law |
| Respondent: | In person |
ORDERS
Count 1 of the Amended Application-Contravention filed on 18 November 2014 alleging a contravention by the Respondent on 25 December 2013 of Order 4 made on 17 December 2013 is dismissed.
Count 2 of the Amended Application alleging a contravention by the Respondent on 2 January 2014 of Order 4 made on 17 December 2013 is dismissed.
Count 3, alleging a contravention by the Respondent on 3 February 2014 of Order 4 made on 17 December 2013 is dismissed.
The Applicant has established a prima facie case in respect of Count 4, alleging a contravention by the Respondent between 26 December 2013 and 18 January 2014 of Order 14 made on 17 December 2013.
The Applicant has established a prima facie case in respect of Count 6, alleging a contravention by the Respondent on 20 January 2014 of Order 14 made on 17 December 2013.
Count 7, alleging a contravention by the Respondent on 21 January 2014 of Order 17 made on 17 December 2013, is dismissed.
Count 8, alleging a contravention by the Respondent on 3 February 2014 of Order 17 made on 17 December 2013, is dismissed.
The Respondent did on 19 June 2014 contravene Order 1 made on 16 June 2014 by failing to take the child X to an appointment with Dr M at 12:30 pm on 19 June 2014.
The Applicant has established a prima facie case in respect of Count 10, alleging a contravention by the Respondent on an unspecified date after 20 January 2014 of Order 9 made on 17 December 2013.
The Respondent Mother is granted leave to file and serve an affidavit setting out the facts upon which she seeks to rely in support of contention she may wish to make that she has either a defence to or a reasonable excuse for all or any of the above allegations within twenty-eight (28) days from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Callahan & Callahan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1855 of 2012
| MR CALLAHAN |
Applicant
And
| MS CALLAHAN |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of the parties’ three children for a finding that his former wife has, on no fewer than eight occasions, contravened final parenting orders made on 17th December 2013, and, on one occasion, contravened a further order made on 16th June 2014. The Mother has denied six of the allegations, admitted two and claims that she has a reasonable excuse for another.
Law and Procedure
The meaning of the word “contravened” in the sense of contravening a court order is defined in s.70NAC of the Family Law Act 1975 (Cth), which says, relevantly:
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:
(intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order;
The standard of proof to be applied in determining whether a person has contravened an order is proof on the balance of probabilities (s.70NAF(1)).
If the Court is satisfied that a person has contravened an order, which would take place after a prima facie case has been established and the court has heard any evidence that the person may wish to lead to deny the allegation, that person may still establish that he or she had a reasonable excuse for the contravention (s.70NEA(1)(c)). Again, the standard to be applied in determining whether the person who contravened the order had a reasonable excuse for doing so is proof on the balance of probabilities (s.70NAF(2)).
The procedure at a hearing of such an application is set out in rule 25B.04:
At the hearing of the application, the Court must:
(a) inform the respondent of the allegation; and
(b)ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c) hear any evidence supporting the allegation; and
(d)ask the respondent to state the response to the allegation; and
(e) determine the proceeding.
It is important for a court to follow this procedure and inadvisable to depart from it, especially where one or both of the parties is not legally represented. This issue has recently been discussed by the Full Court of the Family Court in Caballes & Tallant[1], where Strickland J held at [17]:
…applications such as these are common, and given their quasi-criminal nature, I consider it important that the process in hearing and determining them be applied appropriately and transparently, and particularly where neither party has legal representation. Shortcuts should not be taken, and where orders are alleged to be contravened within the meaning of s 70NAC of the Act, that needs to be addressed by affording each party procedural fairness.[2]
[1] [2014] FamCAFC 112
[2] [2014] FamCAFC 112 at [17] per Strickland J
The Hearing
The Father was legally represented; the Mother appeared for herself.
Ten allegations were put to the Mother and she informed the Court that she denied seven of them, admitted two and had a reasonable excuse for one. One of the counts was withdrawn by the Father shortly after.
The Father relied on his affidavits filed on 9th January, 19th February and 18th November 2014. His solicitor, Ms Coady, provided the court with a document entitled “Father’s Case Management Document” in which she had specified which paragraphs of which affidavit went to the various allegations. It would, of course, have been simpler for all if the allegations were all contained in the one affidavit, but Ms Coady explained that she had only received instructions a day or two before and had not had time to consolidate all the evidence into the one document.
The Mother was offered the opportunity to cross-examine the Father on the contents of his three affidavits but chose not to do so. Instead, she made a submission to the Court. As I have commented previously, a hearing of allegations of contravention of parenting orders without testing the evidence of a party by way of cross-examination can have the undesirable result that the Court is unable to make a finding on a disputed factual matter. However, the Mother chose not to cross-examine the Father, for understandable reasons, and it may create unfairness to a party to force him or her into the witness box to give oral evidence when the other party does not wish to cross-examine them (see Ramsay & Wade[3] at [13]).
[3] [2014] FCCA 1431
The Father is the Applicant in this matter. He was legally represented. It is up to the Applicant to establish a prima facie case that a contravention has occurred before the Respondent should be required to give evidence in defence of the allegation or establish that she (in this case) had a reasonable excuse for that contravention.
In those circumstances, noting that there are seven disputed (or partly disputed) allegations, and noting the time of the afternoon, I elected to reserve the Court’s decision. Ms Coady asked if the Court would not “rush” the decision until after the parties had attended a Legal Aid mediation scheduled for 11th December 2014. I agreed to that suggestion.
The Allegations
The allegations are contained in nine separate counts. Eight of them relate to the Orders made on 17th December 2013 and one of them relates to the Orders made by consent on 16th June 2014.
Count 1 claims that the mother contravened Order 4.(g) made on 17th December 2013. Order 4.(g) provides:
The children Z and Y are to spend time with the Applicant mother:
(g) From 3:00 pm to 7:00 pm on Christmas Day;
The Father claims that on 25th December 2013 (Christmas Day) at 3.00pm at (omitted):
The Applicant Mother failed to attend to collect the children Z and Y in accordance with Order 4(g) of the Orders made 17 December 2013.
The Mother denies the allegation.
Count 2 claims that the mother contravened Order 4.(h) made on 17th December 2013. Order 4.(h) provides:
The children Z and Y are to spend time with the Applicant mother:
(h)For a period of one week during each school holiday period;
The Father claims that on 2nd January 2014 at 9:50am approximately and thereafter at (omitted):
The Applicant Mother failed or refused to have the children Z and Y spend time with her in accordance with Order 4(h) of the Orders made 17 December 2013, following agreement being reached on the 22nd December 2013 that the said children would be with the Mother from the 2nd – 8th January 2014 inclusive in accordance with the said Order 4(h).
The Mother denies the allegation.
Count 3 claims that the Mother contravened Order 4.(a) made on 17th December 2013. Order 4.(a) provides:
The children Z and Y are to spend time with the Applicant mother:
a) Each Monday and Wednesday afternoon during the school term from after school until 8:00 pm;
The Father claims that on 3rd February 2014 at 3:15pm at (omitted):
The applicant Mother delivered the children Z and Y to the Father’s address at 3.15 pm on 3rd February 2014, a Monday, and therefore the said children failed to spend time with the Applicant Mother from 3.15 pm until 8.00 pm on the said day in breach of Order 4(a).
The Mother admits the allegation.
Count 4 claims that the mother contravened Order 14 made on 17th December 2013. Order 14 provides:
Neither parent will denigrate or permit or encourage a third party to denigrate the other in the presence or hearing of the children and each parent must do all things necessary to allow each child to feel comfortable in the presence of the other parent and encourage each child to communicate with the other parent.
The Father claims that between 26/12/2013 and 18/01/2014 inclusive via telephone from Father’s address to Mother’s address:
The Applicant Mother has failed to “encourage each child” (in this case the Child X) “to communicate with the other parent” (in this case the Respondent Father).
The Mother denies the allegation.
Count 5 was initially denied by the Mother. However, shortly after, the Father’s solicitor told the Court that her client withdrew the allegation.
Count 6 claims that the mother again contravened Order 14 on 20th January 2014 at “4.00 pm approx. and prior thereto” at the Rooms of Dr M:
The Applicant Mother informed or allowed a third party, to wit Dr M, to inform the child X that Mr S and the Applicant Mother were attempting to have the Respondent Father arrested.
The Mother told the Court that she did not understand the allegation. I have therefore recorded a denial.
Count 7 claims that the mother contravened Order 17 made on 17th December 2013. Order 17 provides:
The parties are restrained from passing or forwarding messages to each other through any of the children and must convey any message to the other party by written or electronic means.
The Father claims that on 21st January 2014 between 9:00am and 12 noon by telephone texts from the Mother to the child Z:
The Applicant Mother attempted to pass messages to the Respondent Father through the child Z.
The Mother denies the allegation.
Count 8 claims that the mother again contravened Order 17, this time on 3rd February 2014 at “daytime” by mother’s telephone to the telephone of the child Z, in that:
The Applicant Mother sent or caused to be sent a text message to the child Z as follows “Please do not ask X to contact his Dad. There is a Court Order. I can’t trust you or Y now. See you Wednesday minus X.”
The Mother admits the allegation.
Count 9 claims that the mother contravened Order 1 made on 16th June 2014. Order 1 was made by consent and states:
The mother will take the child X to an appointment with Dr M at 12.30pm on 19 June 2014.
The Father claims that on 19th June 2014 at 12:30pm at Dr M:
The mother did not take X to the scheduled appointment, thereby frustrating progress of this matter and implementation of Order 10.
The Mother admits the contravention, but asserts that she has a reasonable excuse for doing so.
Count 10 claims that the mother contravened Order 9 made on 17th December 2013. Order 9 provides:
The parties and the children Z, Y and X must forthwith attend upon therapy as directed by the Court and the therapist is to work with the parties to assist in determining:
a) When the child X should recommence spending time with his father;
b) The manner in which time between X and his father is to be reintroduced;
c) The extent of time that X should have with his father; and
d) The communication that X should have with his father;
e) And the mother is to ensure that X thereafter attends the therapist at such dates and times requested by the therapist and the father is to ensure that Y and Z thereafter attend the therapist at such dates and times requested by the therapist.
The Father claims that the Mother, on no specified time and date, contravened Order 9 in that:
The mother took X to one appointment on 20 January 2014 but thereafter did not take X to any further appointments.
The Mother denies the allegation.
Whether a prima facie case has been established
In this case, the Mother has elected not to cross-examine the Father on the evidence that he has led in respect of each of the allegations. This is hardly surprising, as she is not legally represented and does not have any legal training.
It is therefore very important from the point of view of procedural fairness that in these proceedings, which are quasi-criminal in nature, the Court should examine the evidence adduced to ascertain whether the Applicant has made out a prima facie case in respect of each of the allegations. If a prima facie case has not been established, it would be unfair to the Respondent to require her to give evidence in respect of that matter.
It is also important from the point of view of procedural fairness for the Court to examine the nature of the allegations which the Respondent has admitted. Each of the allegations must, on its face, be of a nature that would constitute a contravention of a Court Order. If the Respondent were legally represented, the Court would expect that the Respondent’s lawyer would challenge any allegation that did not constitute a contravention of an order.
As the Respondent is not legally represented, the Court must be satisfied that the admissions entered by the Respondent are made in response to a claim of a contravention of an Order. If the allegation is defective on its face, the Court should not accept an admission to the allegation.
Count 1 claims a contravention of Order 4.(g) made on 17th December 2013, which provides that the children Z and Y were to spend time with the Mother on Christmas Day, but the Mother did not spend time with the children on that day.
The allegation is misconceived, in that the order places an obligation on the Father, with whom the two children were living at the time, to ensure that the children spent time with the Mother. If the Mother, for whatever reason, fails to spend time with the children or chooses not to do so, that is not a contravention of the order.
Order 4, providing for the children to spend time with the Mother, is a parenting order made in favour of the Mother, as stated in s.64B(6). It does not impose an obligation on the Mother to avail herself of the rights contained in the order. If a person chooses not to avail himself or herself of an order made in favour of that person, it should not be regarded as a contravention of the order.
Consequently, Count 1, alleging a contravention by the Mother of Order 4.(g), must fail. It is defective and, therefore, there is no prima facie case.
Count 1 will be dismissed.
It follows that Count 2, which also alleges a contravention of another paragraph of Order 4, will also be dismissed, as there is no prima facie case.
Count 3 was admitted by the Respondent. It, too, alleges a contravention by the mother of Order 4. For the reasons given in [42] and [43] above, I am not satisfied that the Court should accept the admission.
Accordingly, Count 3 will be dismissed.
Count 4 is denied. It alleges a failure by the Mother to encourage the child X to communicate with the Father between 26th December 2013 and 18th January 2014.
The Applicant’s solicitor, Ms Coady, told the Court that her client relied on the evidence in paragraphs [19] to [72] of his affidavit of 19th February 2014, filed the following day. Those paragraphs quote a number of telephone text conversations between the Father and the Mother, in which the Father asks the Mother to arrange for X to call him.
The affidavit refers to a number of answers by the Mother, including:
“I will get X to call you when I feel he is up to it. He is happy and safe.”[4]
“…I will be in touch about X.”[5]
“X will call you Monday.”[6]
“I am away with X not much phone reception. I will get him to call you when I can.”[7]
“X has an appointment with Dr M the physiologist (sic) on Tuesday afternoon, after we meet I will be advised when X should talk with you, Z and Y. X is very happy and safe”.[8]
“After the psychologist appointment on Tuesday.”[9]
“I’m happy for X to see you and Z & Y, when you want to put him first and stopt your obsession with myself and Mr S…”[10]
“No Mr Callahan…You lie and can’t be trusted…I need you to show me X is first most important not your obsession with Mr S then we may be getting somewhere…”[11]
“Stop texting me.”[12]
[4] Affidavit of Mr Callahan 19.2.2014 at paragraph [22]
[5] Affidavit of Mr Callahan 19.2.2014 at [27]
[6] Ibid at [29]
[7] Ibid at [31]
[8] Ibid at [40]
[9] Ibid at [41]
[10] Ibid at [44]
[11] Ibid at 49]
[12] Ibid at [71]
In my view, the evidence is sufficient to establish a prima face case in respect of this allegation.
Count 5 was withdrawn.
Count 6 contains the allegation that the Mother said she did not understand, so I recorded a denial. It alleges a contravention of Order 14 on 20 January 2014 in that the Mother informed the child X, or permitted Dr M to inform X, that the Mother and Mr S were attempting to have the Father arrested.
The Father’s solicitor informed the Court that that her client relied on paragraph [73] of his affidavit of 19th February, which contains the statement:
Y said word to the effect of:
“X said that Mr S and Mum are trying to get Dad arrested, X heard them saying that the police are going get him, they both talk badly about Dad all the time”.[13]
[13] Affidavit of Mr Callahan 19.2.2014 at [73]
The part of Order 14 that appears to be relevant is, presumably:
Neither parent will denigrate or permit a third party to denigrate the other in the presence or hearing of the children…
Quite clearly, the statement alleged to have been made by Y is hearsay, but it is not inadmissible for that reason. It is saved by the operation of s.69ZV(2) of the Family Law Act, which says:
Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
The evidence is not strong, in that it is not even first-hand hearsay but second-hand hearsay, but weight is another matter. I am satisfied that the evidence is sufficient to find that the Mother has a case to answer, in other words, that the Father has established a prima facie case in respect of this allegation.
The allegation in Count 7 is denied. It alleges a contravention of Order 17 made on 17th December 2013, which states:
The parties are restrained from passing or forwarding messages to each other through any of the children and must convey any message to the other party by written or electronic means.
The allegation is that on 21st January 2014 the Mother attempted to pass messages to the Father through the child Z. The Father’s solicitor told the Court that her client relied on paragraph [74] of his affidavit of 19 February 2014, which states that Z received a telephone call from the mother which he recorded and sent on to his father. Annexure “B” to the father’s affidavit records a transcript of the call.
The Annexure is a recording of a telephone conversation between the mother and Z. Clearly, the mother had no knowledge that the conversation was being recorded. Obviously, she did not consent to the recording being made.
Whatever the propriety may be of a child the subject of a parenting order secretly recording a telephone conversation with his mother and then passing it on to his father for use against her in contravention proceedings, the fact is that the recording of the telephone conversation was obtained illegally.
It is a breach of s.11(1) of the Surveillance Devices Act 2007 (NSW) to pass on a recording of a private telephone conversation obtained without the consent of one of the parties to the conversation. Subsection 11(1) provides:
A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.
The Court has a discretion to exclude improperly or illegally obtained evidence by virtue of s.138(1) of the Evidence Act 1995 (Cth), which provides:
Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of as impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained by a child recording a telephone conversation with his mother and passing it on to his father. It is not desirable to encourage or even condone a child taking a partisan attitude to proceedings between his parents.
The evidence will not be admitted.
As there is no admissible evidence in support of this allegation, there is no prima facie case and the allegation will be dismissed.
Count 8 is admitted by the Mother. It, too, alleges a contravention of Order 17, this time on 3rd February 2014, by the Mother sending a text message to the child Z saying:
“Please do not ask X to contact his Dad. There is a Court Order. I can’t trust you or Y now. See you Wednesday minus X.”
The Mother may well have admitted the allegation, but it is clear that the matter alleged cannot establish a contravention of the Order that restrains them from passing or forwarding messages to each other through any of the children. The Mother may well have sent the text message to Z, but on its face it was clearly intended for Z and does not contain any reference of Z passing the message on to his father.
I am not satisfied that the Court should accept the Mother’s admission. The allegation does not constitute a contravention of the order and, consequently, will be dismissed.
Count 9 alleges a contravention of Order 1, which was made by consent on 16th June 2014. The Mother admitted this allegation but claimed to have a reasonable excuse. The allegation relates to a contravention of a very specific order requiring the Mother to take the child X to an appointment with Dr M at 12:30pm on 19th June 2014.
The allegation appears to be correct in form and the Mother has admitted to it. It will be up to her to establish that she has a reasonable excuse for the contravention.
Count 10, which is denied, alleges a contravention by the Mother of Order 9 made on 17th December 2013. The Order required the parties to take the three children to a therapist as directed by the Court, and at paragraph € of the Order the Mother was to ensure that X “thereafter attends the therapist at such dates and times requested by the therapist”.
Ms Coady told the Court that her client relied on paragraphs [6] and [33] of his Amended Affidavit of 17th November 2014. In paragraph [6] he deposes that:
Z, Y and myself attended therapy with Dr M on a regular basis as requested by Dr M. To the best of my recollection we attended together on at least six occasions, and at least three of those occasions X was in attendance. Z and Y also attended with Dr M without me on at least three occasions. To the best of my knowledge and belief X has only attended one session while in Ms Callahan’s care, on 20 January 2014.[14]
[14] Affidavit of Mr Callahan.11.2014 paragraph [6]
Whilst paragraph [6] appears to be contradictory in its wording, there is sufficient evidence to allow the Court to find that the Mother has a case to answer in respect of this allegation.
Evidence in response or to establish a reasonable for the contraventions
The Father has established a prima facie case in respect of Counts 4, 6 and 10, and the Mother has admitted the contravention in Count 9.
It is up to the mother to establish, by way of affidavit evidence:
a)that she either has a defence or a reasonable excuse for the contraventions of Orders 14 and 9 of 17th December 2013 as set out in Counts 4, 6 and 10 respectively; and
b)that she has a reasonable excuse for the contravention of Order 1 made on 16th June 2014.
In each case, the Mother must not only be given an opportunity to establish a defence or a reasonable excuse, she must be given the information to enable her to present evidence in a way that can be accepted by the Court. It will not do for the Mother to be left with the impression that she can establish a defence or a reasonable excuse on the balance of probabilities by making a submission from the Bar table. It will be necessary for her to give evidence on affidavit, and she may be subject to cross-examination on the contents of the affidavit (see Ramsay & Wade[15] at [58]).
[15] [2014] FCCA 1431
This issue was considered by the Full Court of the Federal Court in SZRUR v Minister for Immigration and Border Protection[16], which was an appeal from the Federal Circuit Court in its general federal jurisdiction. In that case, the Full Court held that the failure of the trial judge to explain the necessary procedure to the appellant, who was self-represented and unable to speak or write English. Their Honours held at [39]-[40] that the failure of the primary judge to explain the procedure to the appellant was not fair and could have affected the outcome.
[16] [2013] FCAFC 146
In my view, procedural fairness to an unrepresented respondent in contravention proceedings requires that:
a)The respondent understands that she has a right to bring evidence to establish that she either did not contravene the orders as alleged or had a reasonable excuse for doing so;
b)The respondent understands what the law means by a reasonable excuse in the circumstances; and
c)The respondent understands the procedure necessary to bring evidence before the Court that will go towards establishing a defence or a reasonable excuse should she choose to do so.
If the Court is satisfied that a respondent has committed a contravention of an order, subsection 70NEA(1)(c) requires the person found to have contravened the order to prove as reasonable excuse for the contravention. It is not incumbent on the Applicant to disprove reasonable excuse; the respondent is required to prove it. The standard of proof is proof on the balance of probabilities (s.70NAF(2)).
Section 70NAE sets out what a reasonable excuse for a contravention may be, without being an exhaustive definition. Subsections 70NAE(2) and (4) to (7) set out what is a reasonable excuse.
Subsection 70NAE(2) provides that it is a reasonable excuse if the person concerned did not understand the obligations imposed on the person bound by the order, and the Court is satisfied that the respondent ought to be excused because of the contravention.
Subsections 70NAE(4) and (5) do not appear to be relevant, but subsections 70NAE(6) and (7) may be. In each case, they provided that it may be a reasonable excuse if the person believed on reasonable grounds that their action or failure to act was necessary to protect the health and safety of a person (including the respondent or the child) and the period of time involved was not longer than was necessary to protect the health or safety of the person concerned.
There may be other circumstances not mentioned in s.70NAE.
The Mother in this case is obviously fluent in English and literate, but she is not legally represented. Clearly, it would be of assistance if she were to obtain legal representation, even at this late stage, but that may not be possible.
It is up to the Mother to bring evidence in admissible form to establish a defence or a reasonable excuse for the contraventions alleged. Evidence in this Court is given by affidavit, and of the Mother wishes to lead evidence in this case, she will need to file an affidavit at the Court Registry and serve a sealed copy of the affidavit on the Father’s solicitor, Ms Coady. It is quite likely that the Father’s solicitor may seek to cross-examine her on her affidavit evidence.
It may be of assistance if the mother were to serve a sealed copy on the Independent Children’s Lawyer, even though the Independent Children’s Lawyer is not playing a direct role in the proceedings.
The Mother needs to be aware of the consequences that may flow from a finding that she contravened the orders without a reasonable excuse.
Section 70NEB empowers the Court to do any or all of the following:
a)make an order requiring her to attend a post-separation parenting program;
b)make further parenting order compensating the father for time not spent with the child;
c)adjourn the proceedings to allow either or both of the parties to apply for a further parenting order;
d)make an order requiring her to enter into a bond in accordance with section 70NEC; or
e)make an order that she should pay some or all of the father’s costs of the proceedings.
Procedural fairness
In summary, procedural fairness that the Respondent Mother be made aware of:
a)her right to seek to establish that she has a defence for the contraventions alleged;
b)her right to seek to establish that she has a reasonable excuse for the contraventions found against her;
c)the procedure required to put evidence before the Court; and
d)the consequences that may flow if she fails to establish a defence or a reasonable excuse for the contraventions.
I propose to find that the Applicant has established one contravention of the Orders and a prima facie case in respect of three others. I also propose to grant the Respondent leave to file and serve an affidavit setting out the facts upon which she seeks to rely if she wishes to establish a defence or a reasonable excuse.
I will adjourn the proceedings to a suitable date for further hearing.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 12 December 2014
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