COMMISSIONER, WESTERN AUSTRALIA POLICE andREDFORD

[2011] FCWA 42

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT : FAMILY LAW ACT 1975

LOCATION : PERTH

CITATION : COMMISSIONER, WESTERN AUSTRALIA POLICE and

REDFORD [2011] FCWA 42

CORAM : CRISFORD J

HEARD : 1 JUNE 2011

DELIVERED : 9 JUNE 2011

FILE NO/S : PTW 3417 of 2002

BETWEEN : KARL JOSEPH O'CALLAGHAN

COMMISSIONER, WESTERN AUSTRALIA POLICE Applicant

AND R

Respondent

Catchwords:

CONTEMPT OF COURT - contravention of court orders - flagrant challenge to authority of the Court - whether reasonable excuse for breach - identification evidence

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant : Ms E Needham Respondent : Self Represented Litigant Independent Children's Lawyer : Ms J Johnston

Solicitors:

Applicant : Western Australia Police Respondent : Self Represented Litigant Independent Children's Lawyer : Calverley Johnston

Case(s) referred to in judgment(s):

Bande & Cade [2011] FamCAFC 93

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1 Detective Constable [Amanda Taylor] of the Gang Crime Squad, on behalf of

the Commissioner, Western Australia Police seeks to have the [respondent mother]
dealt with for contempt of court orders. DC Taylor alleges that:

a. On 9 November 2009 at approximately 10.30am the Respondent removed the child, [SAMUEL REDFORD] born 18 September

2000 from [his] Primary School situated at [a Perth suburb] in the State of Western Australia being the school attended by the child contrary to the Order made by this Honourable Court on 9 February

2009;

b.AND FURTHER on 9 November 2009 at approximately 10:30am the Respondent did knowingly approach the child, SAMUEL REDFORD and the child’s school without the consent of the child’s father, or order of this Court contrary to paragraph 3 of the Orders made by this Honourable Court on 9 April 2009;

c. AND FURTHER between 9 November 2009 and 23 November 2009 the Respondent removed the child, SAMUEL REDFORD from his school and thereafter travelled to and remained [Sydney] [sic] in the State of [New South Wales] so that the child was living with her contrary to the Orders made by this Honourable Court on

15 September 2008.

2She further alleges that at about noon on 3 February 2011 at the [suburban Perth] Primary School the mother entered the school grounds contrary to court orders made on 9 April 2009.

3The mother admits that, as alleged, she did remove the child from the Primary School on 9 November 2009, however she did so on the basis she had reasonable grounds to believe it was necessary to protect the health and safety of the child.

4 She denies attending the school on 3 February 2011.

Background

5The litigation in the Family Court between the father and the mother commenced in 2002. On 7 August 2008 the parties entered into consent orders which reflected a sharing of the child’s living arrangements on a fortnightly basis. The child lived with his father for nine days each fortnight and with his mother for five days each fortnight.

6On Monday 8 September 2008, whilst in his mother’s care, the child failed to attend at his primary school. The father was notified by the school and on

9 September 2008 the Court authorised a recovery order for the return of the child to his father.

7Again, relevantly, on 15 September 2008 the Court made an order that until further order of the Court the child would live with his father.

8On 29 January 2009 the child was located in [Brisbane, Queensland] by the Australian Federal Police. He was returned to his father in accordance with the recovery order.

9Relevantly, on 9 February 2009 it was ordered that until further order of the Court no-one other than the father and his present wife was permitted to remove the child from the school at which he attended. Further orders were made on 9 April 2009 preventing the mother from approaching the child, his school or any place she knew the child would be without the consent of the child’s father or a court order.

10 The mother had no contact with the child after his return to Western Australia from Brisbane in early 2009.

11 On Monday 9 November 2009 at approximately 10.30 am the mother attended the Perth suburban Primary School and removed the child. On the same day the Court authorised a recovery order for the return of the child to his father.

12 Investigations by interstate police revealed that the mother and the child were in New South Wales. They were located in Sydney on 23 November 2009. The child was returned to Perth the following day in the company of his father.

13 The mother was charged pursuant to s 343(1) of the Criminal Code Act 1913 (WA) that she, with intent to deprive a parent, enticed the child from the Perth suburban Primary School yard. Subsequently, the Office of the Director of Public Prosecutions for Western Australia discontinued this prosecution on the basis that it was in the public interest for proceedings of this nature to be conducted in the Family Court of Western Australia.

14 On 19 July 2010 DC Taylor filed the first application for contempt. This application was amended on 11 August 2010 and again amended on 16 February 2011. The amendments related to form, not substance.

15 On 5 August 2010 the matter came before the Court for directions. At this court event the mother was represented by the duty lawyer who sought an adjournment to enable the mother to obtain further legal advice. This was granted.

16 On 2 September 2010 a solicitor from Dwyer Durack, a firm previously engaged by the mother, appeared on her behalf. The matter was placed in the Callover for the allocation of a trial date. The matter was set for trial on 10 January 2011 with a hearing time of 2 days. On 6 December 2010 Dwyer Durack filed a Notice of Ceasing to Act.

17 On 10 January 2011 I adjourned the trial of the contempt application to enable the mother to seek a transfer of her grant of legal aid from Dwyer Durack to another firm of solicitors.

18 On 10 February 2011 a different representative of Dwyer Durack appeared on behalf of the mother. The application was then adjourned to the trial date of 1 June

2011. This was a fixed date to enable interstate witnesses to attend.

19 On 11 February 2011 DC Taylor filed a further application for contempt.

20 On 31 March 2011, at a special appointment to ensure readiness for the trial, Dwyer Durack again appeared for the mother. Senior Counsel had been briefed for the trial.

21 On 5 May 2011 Dwyer Durack again filed a Notice of Ceasing to Act.

22 On 31 May 2011 the mother made an application to vacate the trial in order that she could obtain further legal advice. This was dealt with on the first day of trial.

23 The mother accepted there had been a number of adjournments over the past year to enable her to secure appropriate legal representation at trial. She offered no precise explanation for not proceeding with her existing legal representation. She said she had not attended all her psychologist’s appointments as requested by her lawyers because she had chronic fatigue. She said that she wanted the matter dealt with and accepted it was unlikely to be adjourned. She accepted she had previously had legal advice about the charges.

24 In all the circumstances the Court was satisfied that the respondent would receive a fair trial if the matter was to proceed.

The relevant law

25 As the Full Court has recently set out in Bande & Cade [2011] FamCAFC 93:

118.Section 112AP of the Family Law Act 1975 (Cth) (“the Act”) provides that a Court may punish a person for contempt of court where the matter concerns a breach of an order which “constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court” (s 112AP(1)(b)).

119.The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen (1994) FLC 92-496 the Full Court held (at 81,162): “The use of the term ‘flagrant challenge’… is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied…”

120.The breach in question must be wilful (that is deliberate, as distinct from inadvertent) but not necessarily contumacious. In English & English (1986) FLC 91-729 the Full Court held (at 75,294): “In our opinion the line of authorities … demonstrate that in proceedings

for civil contempt it must be established that the respondent knew of the undertaking or order and that his act or omission in breach of that order or undertaking was a wilful, that is, a deliberate act by him as distinct from accidental or inadvertent. It is not necessary in addition to establish that the conduct was contumacious; that is, it is unnecessary to show that the act or omission was done with a deliberate intention to break or disregard the undertaking or order.”

121. …

122.The standard of proof in s 112AP applications is that the charge must be proved beyond reasonable doubt. In Tate & Tate (2002) FLC 93-107 the Full Court stated as a matter of principle (at paragraph 63) that: “In our view, having regard to Witham v Holloway … the standard of proof to be applied in proceedings in the Family Court seeking that the respondent be dealt with for contempt of court is proof beyond reasonable doubt, unless the Evidence Act provides to the contrary.”

26 The Family Law Act 1975 (Cth) (‘the Act”) now differentiates between contraventions of orders “affecting children” and contravention of other types of orders. There can be no dispute that the orders here “affect children”.

27 Part VII Division 13(A) of the Act deals with sanctions for failure to comply with orders that affect children. There is what might be described as a sliding scale from those offences termed “less serious” to those which can be classed as “more serious” and, where the Court is satisfied that the person who breached the order “has behaved in a way that showed a serious disregard of his or her obligations under the primary order”. It is this latter class that applies to breaches involving a “flagrant challenge to the authority of the Court”. It is this category that constitutes a contempt of court. It should be reserved for breaches of an “exceptional or striking nature”.

28 The circumstance in which a person may be taken to have had a reasonable excuse for contravening an order affecting children under the Act is set out in s 70NAE. The mother says here that she believed on reasonable grounds that the actions she took to remove the child were necessary to protect his health and safety.

29 Given she accepts, and in fact pleaded guilty to the essential elements of the charges, the onus of proving there was a reasonable excuse falls upon her. The standard to which she must prove this is on the balance of probabilities.

Contempt application filed 19 July 2010

30 DC Taylor’s first contempt application contains three separate counts.

• Firstly, that the mother removed the child from the school;

•Secondly, that she knowingly approached the child at the school without the father’s consent or a court order; and

•Thirdly, that by taking the child to New South Wales she contravened the order that the child live with his father.

31 The mother does not deny any of this, but simply says she had a reasonable excuse for her actions.

• Facts relied upon by the mother

32 The mother says she believed at the time she removed the child from the school he was unsafe in his father’s care. She was trying to protect his safety.

33 In this respect the mother raises the issue of abuse. Her concerns are primarily based on historic facts. She says that the father has abused the child in the past and when she removed the child from the school in 2009 she still held these concerns.

34 Her allegations about physical abuse pre-date the consent orders made on

7 August 2008. The consent orders were made on the first day of trial. The mother’s affidavit for the trial, which did not proceed, was again relied upon by her in this contempt hearing. In that affidavit sworn 29 July 2008 she outlines her concerns about the child being inappropriately chastised by the father and his present wife. She also outlines some of the steps she took in reporting the matter to Princess Margaret Hospital and the Department for Child Protection. She said that the Department held no concerns and no action was taken against the father.

35 Despite her concerns, she entered into the consent orders. Leading up to that proposed trial the mother was legally represented. She said she changed solicitors just prior to the trial, but she was represented during the negotiations upon which the consent orders were based.

36 The mother also raises the issue of the child’s health These concerns are based on what she observed at the school and what the child later told her.

37 The mother says that when she approached the child at the school in November

2009 she noticed he had eczema. He also had ulcers in and around the outside of his mouth. She says it was so debilitating he could not speak properly. She also says he was carrying excessive weight and this impacted on his ability to bend over. She says she sought treatment from a chemist and obtained some cream to combat his eczema.

38 The mother also recounted what she said the child had told her in the two weeks he was with her. She said he had been placed into a car boot. He was told that if he said anything about this he would be taken into the bush. This evidence was raised for the first time in the course of cross-examination.

39 The mother accepts that she had not seen the child between the time he was brought back from Brisbane in early 2009 until she attended the school on

9 November 2009. She had received no information about the child in that intervening period.

40 The mother accepts that she was at the school on 9 November 2009 for only a few minutes. She said she simply wanted to see the child during the morning recess. The child indicated he wanted to go with her and she took him.

• Finding on reasonable excuse

41 I am not satisfied on the balance of probabilities that the mother had a reasonable excuse for either approaching the child at his school, removing him from the school or thereafter taking steps to ensure the child would live with her.

42 I am not satisfied in relation to issues of safety for the following reasons:

•Although the mother had concerns about the child’s safety in early 2008, she nonetheless entered into consent orders that the child live predominantly with the father. She says she was forced into these orders. Although she again commenced proceedings in Brisbane in March 2009, these have not proceeded. They were transferred to the Family Court of Western Australia, but the mother’s actions in November 2009 have stalled the progress.

•Even on the mother’s evidence the abuse allegations were investigated and not taken any further by the authorities. A Single Expert psychologist had been involved leading up to the first trial. He held no concerns about the father.

•The mother was challenged on why she had not reported the new concerns about the child being put in a car boot to the authorities. She said she had reported it to the police. There was no corroboration of this. I do not accept the mother took active steps about this issue, even if it did exist.

•The mother had not seen or heard from the child since early 2009 and admits that no new concerns were brought to her attention before she took the child in November 2009.

•The mother’s evidence is inconsistent. On the one hand, the mother said she simply wanted to see the child during the school morning recess. She took the child because he said he wanted to go with her. On the other hand, she says she feared for his safety. I did not find her to be a reliable witness.

43 I am not satisfied on the balance of probabilities that the mother’s concerns about issues of the child’s health were reasonable or that they warranted her taking the action she did. I say this for the following reasons:

•The mother had no prior knowledge of the child suffering eczema or mouth ulcers on that day. She had no knowledge of how much he weighed. These concerns could only have been apparent once she had actually breached paragraph 3 of the orders of 9 April 2009 stating she not approach the child at his school. Thus, in relation to contravention (b) at least, her only basis for reasonable excuse is the historic concerns she said she had. I have already dealt with this aspect.

•Even if the child had some eczema, mouth ulcers and was overweight, I am not satisfied that this was a reasonable ground to believe his health was at such risk or his welfare in such jeopardy that a removal from the state was warranted. The child was at school and there is no evidence to suggest the school had concerns. The mother’s actions were out of all proportion to what she says the child was suffering.

•Again, the mother was at the school for a very short period of time. She says she removed the child because he said he wanted to go with her. I am not satisfied

she made any decisions based on genuine concerns about ulcers, eczema or weight and these were afterthoughts.

44 The actions of the mother on 9 November 2009 have to be considered against the backdrop of her already having removed the child from the state to Brisbane the year before. This was in late 2008 and ostensibly for the same reasons she now advances. She was not charged with contempt or any criminal offence after the child was brought back from Brisbane.

45 DC Taylor’s affidavit and the facts relied upon in relation to this contempt application details that when the mother removed the child from the school on

9 November 2009 she had dyed her hair [black]. Generally, she presents with [blonde] hair. The child also gave this detail in a visually recorded interview with the West Australian Police Child Interview and Assessment Unit. It is also common ground that he had his hair dyed in Sydney. When located he was hiding in a shower recess. I have no difficulty in drawing the inference that the dying of hair was a subterfuge designed to avoid detection.

46 I am satisfied that each of the counts in the amended application for contempt has been proved beyond reasonable doubt. Not only was there a contravention of court orders, but the manner in which the orders were breached involve a flagrant challenge to the Court’s authority. I am not satisfied on the balance of probabilities that the mother had a reasonable excuse for contravening the orders.

Contempt filed 9 February 2011

47 DC Taylor’s second allegation revolves around the mother attending the school on 3 February 2011. There is one count contained in this application and the mother pleaded not guilty to it. She elected not to give evidence.

48 The applicant must prove each and every element of this charge beyond reasonable doubt. The mother has no onus to prove or disprove anything.

49 The gravamen of the charge is whether or not the person observed by a school chaplain at around midday on 3 February 2011 is, in fact, the mother. The case revolves around the issue of identity.

• Facts

50 DC Taylor called one witness in support of this charge. [Kathy Harper] is the Chaplain at the Perth suburban Primary School. She had been in that role about four years, starting in October 2007. The child was known to her. He attended the school in early 2009 after his return from Brisbane.

51 She recalls his attendance at the school in early 2009. She saw him weekly. The school was aware of who was to collect and deliver him to school each day. However, after the child was taken from the school in November 2009 a specific risk management plan was implemented for him.

52 Pictures of the mother were placed in the staff room of the school and in the child’s classroom. Pictures were also in the Principal’s office and in the teacher’s tote bag. The tote bag comprises necessary medicines or information about various students. In the child’s case there were two photographs of the mother. The protocol was that if any staff member saw the mother in or around the school grounds this was to be reported immediately. The child would be removed to a safe place.

53 On 3 February 2011 Ms Harper was working at the school. At around midday she had reason to leave her own office and attend the central office. There was an exchange of kindergarten students at about this time. A number of parents were waiting to collect their children at the kindergarten door. Whilst she was returning from the central office to her own office she noticed a woman standing some distance away from the other parents. This drew Ms Harper’s attention to her. She was not with the other parents.

54 Ms Harper said that she was facing the woman and walked directly towards her.

The woman was not looking at Ms Harper. Ms Harper said she had black hair. She described it as [deep black]. She described her clothing and shoes. Ms Harper approached her and, on the basis she was lost, asked whether she could be of assistance. Ms Harper said the woman looked down and said nothing. They then both arrived at a gate. Ms Harper opened the gate and allowed the woman through. The woman thanked her.

55 Ms Harper was approximately 1½ arm lengths from the woman when she first spoke to her. She saw her for about 40 seconds in total. She did not lose sight of her.

56 Ms Harper said “I had a form of recognition within a second or two of letting her through the gate”. She said she was shocked and put her head over the gate to see where the woman had gone.

57 She could not see the woman at this stage and went to speak to the duty teacher and the child’s class teacher. The child was taken care of.

58 Ms Harper then tried to locate the woman. As she walked towards the outer perimeter of the school she said she noticed a [white sedan] driving in a direction away from the school. She noted the type of car as it was part of the school’s management plan to be aware of [that particular] white sedan. She said the plan indicated that a car of that colour and make belonged to the mother at that time.

59 Ms Harper had said that she recognised the woman at the gate when she had a “moment of recognition”. Later when she went and looked at the photographs again she was absolutely sure it was the mother.

60 Two photographs were produced. One is of a [blonde] woman ostensibly in a social situation with considerable makeup. She appears happy. She is smiling. The other one is of a [dark] haired woman with no makeup. The photograph is captioned “city watch house” and dated 23 November 2009. The woman appears forlorn. She is not smiling.

61 Ms Harper had never met or seen the mother in person prior to the allegations of

3 February 2011.

• Findings

62 Identification is the crucial issue in this case. DC Taylor argues that Ms Harper correctly identified the mother.

63 During the trial Ms Harper made a positive courtroom identification that the person she had seen at the school grounds was the mother in court. In my view, this identification carries very little weight. The identification of the mother in court is unsurprising. There was only one possible person in the courtroom at the time of the identification who could have been the mother.

64 The applicant says that the Court can find the charge proved by reason of recognition of the mother based on photographic identification.

65 I do not for a moment consider that Ms Harper is dishonest in her belief that she has correctly identified the mother as the person being at the school yard. She was credible in the manner in which she gave her evidence. However, this does not mean she is not mistaken in her belief.

66 I have carefully considered the length of time Ms Harper had to see the person – about 40 seconds in total. I accept that she walked towards this person at midday. There is no question of obstructions or distractions or poor lighting.

67 This is not a matter of a person identifying someone she has seen or known in the past. This is recognition of someone after having viewed a photograph. In deed, there were two photographs which are dissimilar. The Court must be very careful about basing guilt on recognition of a photograph. The photograph is two dimensional, static and limited. One of the photographs here is of a woman’s head and the second photograph is of a woman’s head and chest. A photograph does not show how a person moves, her posture or the many other characteristics that actually seeing a person provides. Although Ms Harper was able to describe the hair colour and style, and her clothing, there was no evidence about the woman’s other features.

68 Ms Harper said she saw a white sedan driving in a direction away from the school. There is no evidence to link that particular car with the mother. Although there is some suggestion the school’s risk management plan for the child indicated the mother owned such a brand of car, there was no evidence before me at the contempt hearing of ownership of such a car on 9 November 2009. I was not given a copy of the detail of the risk management plan. The car was on a public road. Without more, I consider the link between the mother and this car to be speculation.

69 I accept Ms Harper to be an honest witness. On the basis of her evidence, I have suspicions that the mother was at the school on the day in question. However, this does not equate to being satisfied beyond a reasonable doubt. I am not so satisfied. Given the nature of the identification I cannot be sure there was not a mistake in Ms Harper’s recognition.

Orders

1 The application for contempt filed 19 July 2010 (as amended on 11 August

2010 and further amended on 16 February 2011) in paragraphs 3(a), (b) and (c)
is found to be proved.

2 The application for contempt filed 9 February 2011 be dismissed.

Penalty

70 I will now hear submissions in relation to the appropriate punishment to be imposed.

I certify that the preceding [70] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate