Daniels and Department of Community Services

[2007] FamCA 1401

FAMILY COURT OF AUSTRALIA

DANIELS & DEPARTMENT OF COMMUNITY SERVICES   [2007] FamCA 1401

FAMILY LAW – CONTEMPT – Contravention of Court order

Family Law Act 1975 (Cth)

APPLICANT: Mr Daniels

RESPONDENT: Department of Community Services

FILE NUMBER: PAF 747 of 2005

DATE DELIVERED: 12 June 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Justice Waddy

HEARING DATE: 12 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the Application for Contravention filed 1 May 2007 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Daniels & Pearson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 747 of 2005

MR DANIELS  

Applicant

And

DEPARTMENT OF COMMUNITY SERVICES

Respondent

REASONS FOR JUDGMENT

1. This matter is brought by way of contravention application filed by the father on 1 May 2007. The respondent nominated is the Director General of the Department of Community Services care of the Crown Solicitors office. 

2. Mr Harper of counsel appears for the Director General of the Department of Community Services.  The father appears to prosecute his application.

3. The application is quite specific.  It is brought under the amended Act and is dealt with as “Sanctions for Failure to Comply with Orders and Other Obligations Affecting Children”.  A new parenting compliance regime was put in place by recent amendments to the Act.  I have no doubt that the orders complained of were orders affecting a child.

4. The provision under s.70NC provides:

   Meaning of contravened an order.  A person is taken for the purposes of this division under which the application is brought to convene an order under this Act affecting children if and only if a) where the person is bound by the order he or she has i) intentionally failed to comply with the order; or ii) made no reasonable attempt to comply with the order; or b) otherwise he or she has i) intentionally prevented compliance with the order by a person who is bound by it; or ii) aided or abetted a contravention of the order by a person who is bound by it. 

5. Of course, persons who would otherwise have breached an order may under s.70NE establish a reasonable excuse for contravening an order.

   That applies: where the respondent is taken to have had a reasonable excuse for contravening an order under this Act affecting children if a) the respondent contravened the order because or substantially because he or she did not at the time of the contravention understand the obligations imposed by the order and the person who was bound by it and the Court is satisfied the respondent ought to be excused in respect of that contravention.

6. There are various other provisions, but I have to go back I think to s.70NC as to whether or not the person is bound by the order in the person of the Director General of the Department of Community Services.

7. Mr Harper took some preliminary objections to the proceedings being looked at by the Court.

8. The first objection was that it is not possible from the application to tell what the breach was and that is because of the way in which the application was framed.  Although there are examples of how the orders should have been set out, and they appear under the handwriting of the father "please see attached affidavit", specifying a date, a time, a place and a statement of the alleged contravention.  I read out from his form:

   Example of an order affecting children:  29 March 2004 at 9 am at […, M], the respondent without reasonable excuse refused to allow the applicant to have contact with the child […].

   The father’s allegations are cast in quite different terms.  Under part D which reads:

   State the paragraph number of the attached order agreement, parenting plan or undertaking that you allege has been contravened, e.g. 267.

   Under that has been completed: the complainant has set out:

   “O.4(a) and (b), 7 of 13 June '05 several times.  O.4, 6 of Court date 21 December '06 several times.”

9. When one turns to find the “attached affidavit” there is nothing attached, to that particular application. Thus there is nothing in the application which itself spells out a specific breach, time or place.  This it seems to me would be a fundamental flaw to the proceeding.

10. There were however three affidavits filed by the applicant.  The applicant is an unassisted, unrepresented father who has had his daughter removed from his care. The daughter has also been removed from the mother's care, and has been placed with a paternal aunt, and the father having access alternate weekends.  This is, as one can imagine, extremely distressing to him.  He suffers from an anxiety state, together with other medical problems for which he is on medication, and, indeed, his medical circumstance is such that he has a carer in attendance.  It was the carer who served the applications for contravention in both cases.

11. The affidavits of course instead of being one were three.  I am not going to take any point about that.

12. If one looks at the one against the intervenor it says that annexures A to L are attached.  They are not.  He sets out in an affidavit a great deal of material, a lot of which he explained to me over three quarters of an hour when the case was about to be heard.  The father’s complaints about the Department have been summarised, they have been served on the Department, and the Department has indicated that it intends to take a certain course in these proceedings in the future.

13. Following the commencement of proceedings between the father and mother, the Department of Community Services became involved as a party to the proceedings some time towards the end of 2006.  The father complains that the Department, whilst still a party to these proceedings, has initiated other proceedings against at least him (but I suspect the mother as well) in the local Children's Court.  Those proceedings are yet to be determined.

14. Mr Harper, counsel for the Department of Community Services, has indicated that the Department intends to place on affidavit all the material that it had or has, that it wished to place before the Children's Court, and intends to place that on affidavit before Collier J who will shortly hear the principal proceedings.

15. This morning the father obtained another date before Collier J for mention on Friday 22 June 2007 at 2.15 pm.  The matter has come into my list so that the contravention applications will have been dealt with prior to the Court dealing with the substantive matters either by way of interim orders or final orders, depending on how soon Collier J can come to deal with them.

16. Mr Harper has expressed a concern, which is shared by the father and certainly shared by the Court, that these contravention applications be dealt with expeditiously so that nothing stands in the way of Collier J’s discretion in justly determining either interim proceedings or final proceedings.

17. The father has a large number of complaints about the Department of Community Services which I allowed to be stated this morning.  They do not affect my attitude to dealing with this application.  I must proceed according to law. But it seemed to me to do no one any harm if the Department of Community Services, who is represented here not only by counsel but by a solicitor and someone instructing, presumably a solicitor from the Department, were to hear what those complaints are expressed verbally.  I gather that, up to date, the parties have not been talking fruitfully about trying to resolve what will happen to the child, who is aged 5 and is presently with neither her mother nor her father but with a paternal aunt.  That is the background to the proceedings. 

18. When I look at the contraventions, the scheme of the Act provides of course for all sorts of sanctions.  Those are contained in what has been called a self-contained code, quite different to the contempt provisions.  The orders that I might make are complex and varied and they include all sorts of sanctions including going to counselling and ranging then to bonds, fines and gaol.  In these circumstances, of course, there needs to be a strict compliance with the law by those bringing applications, so that those who are at risk of such orders of the Court, including orders of the severity of bonds, fines or imprisonment, are treated justly. Consequently, it is of great importance for them to know precisely what it is that is alleged against them. They do not have to give any evidence until a contravention is otherwise established.  Then they are at liberty to come and plead or prove, if they can, reasonable excuse for what they did.  If that is established that is an end of the matter.  If it is not, then the Court would proceed to consider what remedial orders it might take.

19. It has to be remembered that this part of the Act appears in the section of Enforcing an Order of Parenting.  Parenting is dealt with by the objects and principles of the Act, which are subject, of course, to the best interests of the child. So, whilst it has been endeavoured, as far as we can see, to simplify the provisions, it seems to me that they have been made complex for lawyers, and particularly very complex for persons who are not lawyers, to actually enforce parenting orders in a way which is consistent with doing justice.

20. Under s.70NC, which I read earlier, I have to establish that a person is bound by the order.  This is, I believe, sufficient to dispense with the application against the Director General of the Department of Community Services.

21. I have already spent some time explaining to the father the federal nature of our commonwealth, the powers that rest with a Federal Court under federal legislation and the powers that remain with the State under State legislation. The Department of Community Services of course is State body. As such, it does not come under federal jurisdiction unless in some way it brings itself by its own actions within the orders that might be made by a Court acting in its federal jurisdiction.

22. The father has submitted that this is done merely by being joined as a party.  But one only has to think of other instances where intervenors could be joined as parties to point out that this is not of itself sufficient.  There are frequently proceedings, for instance, relating to children and property.  There is an illustration of this in the Application for Contravention Form, which relates to property.  It was the second one on the form, that, on:

    23 March 2004, at 9 am at […, M] the respondent without reasonable excuse sold the Holden motor vehicle registration number […].

23. So these proceedings concerning children can also be joined with proceedings in relation to property. Often there are intervenors in relation to property, grandmothers, grandfathers, parents, banks and so on, who become party to the proceedings, and to the extent that one could say that the child is to spend week and week about with the mother, but the bank is in breach if that does not happen, only points up, I think, as I am trying to do as simply as possible, that merely becoming a party to proceedings does not necessarily mean that all parties are bound by all orders. Some orders made would be property orders, and those parties would be bound by property orders.  Some might be parenting orders, and those interested only in property would not be named or subject to those orders.

24. I understand that the father, who is self instructed and has a handbook from the chief justice, and has taken other sorts of legal advice, is firmly of the view that once one becomes a party, one is bound by any orders.  Indeed, one is, if those orders are expressed to bind that party.

25. Now, if the Court had bound the Department to do something either the Department would have accepted the order, or appealed against it.  But here, when I look at the actual orders that are said to have been breached, O.4(a) and (b) of 13 June 2006, they were made before the Department became a party.  The orders state:

    The child […] born […] July 2001, reside with the mother as follows:

    (a) During school term each alternate week commencing Monday 19 June 2006, from after school Monday till after school Thursday. From after school Friday till the following Monday.

    (b) During school holidays for the next two short holiday periods the second half of the holidays from 9 am on the day marking the mid point of the holidays concluding at 6 pm on the day immediately prior to the day school resumes.

    No mention is made there whatsoever of the Director General of the Department of Community Services.

26. It is similar with O.7:

    That without admissions, pending further order, neither parent is to physically chastise or discipline the child or permit, cause or allow any other person to do so.

27. Those orders clearly refer to the rights of the parents.  There is no suggestion there that they were ever intended to bind the Director General.  One could well imagine why.  No Department of Community Service Director General or anyone else in DOCs would physically chastise a child.

28. The other allegations relate to the Court Orders of 21 December 2006.  The Court orders of 27 October 2006 provided:

    It is noted that the Court views that the Department of Community Services may intervene as a right in this matter pursuant to s.92A(2) being a prescribed child welfare authority.

29. Section 92A(1) relates to intervention in child abuse cases. 

    s.92A(1) This section applies to proceedings under this Act in which it has been alleged that a child has been abused or is at risk of being abused.

30. A notice of abuse has been filed by the father in this case so this section would apply.

    s.92A(2) Each of the following persons is entitled to intervene in the proceedings:

    a) a guardian of the child;

    b) a parent of the child with whom the child lives,  a parent with whom the child is to live under a parenting order;

    c) a person who has parental responsibility of the child under a parenting order or any other person responsible for the care welfare of development of the child;

    d) a prescribed child welfare authority – (the relevant clause here) and

    e) a person who is alleged to abuse the child or from whom the child is alleged to be at risk of abuse.

    Where a person intervenes in proceedings pursuant to this section the person is unless the Court otherwise orders to be taken to be a party to the proceedings with all the rights, duties and liabilities of a party.

31. To that extent the intervenor effectively becomes a party to the proceedings unless the Court otherwise orders.  It is common ground that the Director General had become a party.  Provision was made in the orders of 21 December 2006, that the costs of that day of the mother and of the Department of Community Services were to be determined at the conclusion of the hearing.  Clearly, the Director General had appeared on that day.

32. It is alleged there were breaches of two orders made on 21 December 2006 by the Director General: O. 4 and 6.  Order 4 provides:

    The child shall reside with the mother from 5 pm on 12 January 2007 until 5 pm on Saturday 27 January 2007. 

    Order 6 provides:

    That changeover for all other purposes during school holiday periods shall occur at [L] Railway Station with the same provisions regarding the child passing from parent to parent or grandparents.

33. Neither of those orders deals with the rights or liabilities, it seems to me, of the Director General of the Department of Community Services.  Order 4 is a clear provision, that the child reside with the mother at those times, and there is no suggestion that the Department is involved in the changeover under 6.

34. It seems to me that for the Department, to be bound by an order, would need specific order of the Court expressing that the Department is to be bound. I may be wrong as to that, but that is the view I take of it.  I do not believe the Director General of the Department of Community Services was ever expected to be at the changeover and therefore could not say whether the changeover took place there or not.

35. If the parents agreed that they went to S Station instead of L Station, on the father’s argument, the Department would still be liable because it did not happen at L.  On the father’s argument, if the child resided with the mother from 6 pm on 12 January to 4 pm on the 27^th, then, technically the Director General would be liable.

36. What I am trying to point out is that those things which are between the parties are subject to alteration by the parties: they may be in breach of the orders, but how could the Director General be in breach of those orders if he was not even present or meant to be present.

37. In those circumstances it is my opinion, which of course may be wrong, and can be tested on appeal, that the Director General is not in breach. Taken at its highest, the Director General had no specific obligations under those orders and thus is not specifically in breach of the orders.

38. Insofar as that application is concerned I dismiss it.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Waddy

Associate 

Date:  12 June 2007