Daniels and Pearson and Anor

FAMILY COURT OF AUSTRALIA

DANIELS & PEARSON AND ANOR

[2007] FamCA 1402

FAMILY LAW – CONTEMPT – Contravention of Court order

Family Law Act 1975 (Cth)

APPLICANT:

Mr Daniels

RESPONDENT:

Ms Pearson

INTERVENOR:

Department of Community Services

FILE NUMBER:

PAF

747

2005

DATE DELIVERED:

16 June 2006

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Waddy J

HEARING DATE:

12 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

COUNCEL FOR THE RESPONDENT:

No appearance

COUNSEL FOR THE INTERVENOR:

Mr Harper

Orders

I find two breaches: first, the mother knowingly failed to prevent the child from being physically disciplined by her boyfriend as complained of by the child; and secondly the mother knowingly failed to attend at changeover at 5 pm at L Station on 21 January 2007.
In accordance with s.70NEB and s.70NED of the Family Law Act I impose the following penalties:
(1) In relation to the breach of 21 January 2007 I order make up time of two and a half hours to be provided for following the cessation of the Children's Court proceedings and to be as nominated by the trial judge by way of interim or final orders at that judge's discretion noting the matter is listed before the trial judge on 22 June 2007.
(2) In relation to breach number (1) I order the mother to attend a post separation parenting program to be nominated by the Director of Court Counselling of this Registry, such program to merge with any other that may be ordered by the trial judge. Such order to come into effect following the cessation of the Children's Court matter.
Exhibits to remain for 56 days.
Matter removed from the active pending cases list.

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 74 of 2005

MR DANIELS

Applicant

And

MS PEARSON

Respondent

And

DEPARTMENT OF COMMUNITY SERVICES
Intervenor

REASONS FOR JUDGMENT

In this matter the father appears for himself in an application for contravention brought against the mother of his child, who was born in July 2001. The mother does not appear.
I have this morning, before lunch, dismissed an application for contravention by the same gentleman against the Director General of the Department of Community Services. In that proceeding Mr Harper of counsel appeared and he has remained this afternoon while the second contravention application, that is against the mother, is being dealt with.
At the commencement of this hearing I heard from Mr K a disability carer. He swore to an affidavit of service, and also gave evidence in the witness box, that he had on 1 May 2007 served the mother with an Application in the Case, an Application for Contravention, on 15 May 2000, together with two affidavits of the father, two affidavits of Mr K, and a Notice of Child Abuse.

SUFFICIENCY OF SERVICE

Evidence of service upon the mother included the service by Mr K in person of the two affidavit of the father dated 26 April 2007 and two affidavits of Mr K dated 26 April 2007 and a notice of child abuse. These were served personally on the Breen's Solicitors on 1 May 2007 at 4.50 pm. Mr K's evidence was that on that occasion he handed the documents to Mr Gerard O'Donnell who said there was nowhere to acknowledge service in writing on the document itself and that he would hand his card to Mr K as evidence that he had received them and in evidence has produced a card of Breen's Solicitors and Conveyances with Gerard O'Donnell's name on the top.
I accept that evidence that the documents were duly served on him. Mr Harper acting amicus curiae kindly drew my attention to the requirements of the rules. The r.7.03 provides that:
A person must serve a document in the manner set out in table 7.1.
In table 7.1 item 6 says:
An application for contravention form 8 being must be special service by hand.
The r.7.05 provides for special service:
A document that must be served by special service must be personally received by the person served.
And then r.7.08, special service through a lawyer is as follows, quote:
A document is taken to be served by special service on a person if:
(a)A lawyer representing the person agrees in writing to accept service of the document for the person and
(b)The document is served on the lawyer in accordance with the r.7.06 or r.7.07.
I am convinced that the documents were served as sworn to by Mr K. They were served by way of special service through a lawyer. The lawyer has given a token in writing of his card, but has not written on the card that he accepts the service for the person.
Insofar as there has been non-compliance with the rules I waive compliance with them.
I am convinced that there is evidence that the documents were properly served. There was also a statement this morning to the Court by counsel for the Department, that counsel for the Department had had a communication from Mr O'Donnell acknowledging that the matter was on today, that he would not be attending, but that the litigant in person, the mother, or someone representing her, would be attending.
In those circumstances I am completely convinced that she has sufficient knowledge of these proceedings.
The proceedings have been brought now because they have to be dealt with, as contravention proceedings, prior to further proceedings being taken concerning the child. The child has been removed from both mother and father and is presently with the paternal aunt.
It is obviously in the child's interests above all, not to mention the parties’ interests, that the matter be resolved as quickly as it can be. I imagine that if a new circumstance of cooperation between the father and the Department were to develop by a miracle or otherwise, that may go much further to achieving what he seeks to achieve than what has happened hither to. I am, on that evidence and in light of those rulings, convinced that the matter should proceed today in the best interests of the child and in accordance with the rules and the needs of justice.
The application is brought in the context of severe family dislocation. The father and mother are engaged in unfortunately protracted litigation in this Court, presently before my brother, Collier J. The matter is next before him on the afternoon of 22 June, when interim orders will be sought. The Director General of Department of Community Services has intervened in these proceedings but also brought separate proceedings in the New South Wales Children's Court.
I am informed that it is likely that when orders are made by Collier J on an interim basis, proceedings by the Department of Community Services are likely to be discontinued. The Department will file affidavit material of all that is relevant in this Court to be considered by Collier J. In the meantime the father has gone from Court to Court, and from authority to authority, complaining of the treatment that he has received. He has also gone to the parliament and various other parties seeking redress for what he sees is the harm done to his daughter by not being able to see her father. This is a matter for Collier J.
The father suffers from ill health and, indeed, has told me he may admit himself to hospital this afternoon when this is over. He has certainly exhibited grave symptoms of anxiety.
The father has been attended throughout by his carer, Mr K, to whom I have referred. Both of them have expressed severe frustration at endeavouring to get redress for what both of them see to be a continuing injustice. Unfortunately they have used a “shotgun” approach, with pellets going off in every direction, whereas it probably needs much more of an exocet missile designed specifically to achieve the outcome he wants. That might be better done by paying more attention to the technicalities and less to getting another cartridge of pellets for the shotgun.
Certainly with these breaches out of the way, the father would be extremely well advised to endeavour to find out what it is that concerns the Department of Community Services, (They have set that out in an affidavit) and to address their concerns well before seeing Collier J. Then Collier J will be able to assess the standard of care and accommodation, food and so on that the child could have if she comes back from the paternal aunt and resides with the father. So, hopefully, after today, we will be down to exocets instead of shotguns.
I make these remarks at the outset because the affidavits that were served upon the mother are two by the father and two by his carer, together with a notice of child abuse. The notice of child abuse is explicit and it, after dealing with the parties, complains of:
(1)The mother's hitting the child, locking her in a dark room, calling the child "little bitch".
I do not have evidence of that:
(2) The mother's boyfriend has been mistreating the child and police and DoCS has put an AVO on the mother's boyfriend which returns to Court on 14 May 2007.
(3) Today being 1 May 2007, JIRT, Constable [R] of the [L] JIRT questioning child about serious abuse from the mother's boyfriend.
Under item 10:
The alleged risk of abuse, of sexual abuse, psychological abuse, physical abuse and verbal abuse.
Where orders are sought it is said under paragraph 11:
To be contravention orders of 1 May 2007.
Similar details are given about the physical violence and it is again repeated about the alleged risk of violence.
Having received that document, I do not believe the mother could have been in the slightest doubt as to what these proceedings are about. The application for contravention states the paragraph numbers of the order, alleged or being convened. It is as follows:
Orders 4(a) and (b) and 7 of the orders of 13 June 2005 (and the words following "several times"); and order 4 and 6 of Court orders dated 21 December 2006 "several times".
I set out the orders 4(a) and (b) and 7 of 13 June 2005, quote:
4.That 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 until after school Thursday and from after school Friday until 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 midpoint of the holidays including 6 pm on the day immediately prior to the day school resumes.
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.
These orders were picked up on 21 December 2006 with order 4 and 6 and I quote them:
4.That the child shall reside with the mother from 5 pm 12 January 2007 to 5 pm Saturday 27 January 2007.
6.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.
Accompanying the documents served is the major affidavit of the father, if I can call it that. It is some 40 or 50 pages, with a large number of annexures, and it is of some 21 paragraphs. Having set out what I call the spray gun approach of the shotgun, at paragraph 21 it spells out, I believe with sufficient particularity, (particularly as no objection has been taken to the contravention on the behalf of the mother).
Returning if I might to the notice of contravention, paragraph 7 has been completed in this way:
Statement of the alleged contravention: please see attached affidavit.
Now as I said, the affidavit, at paragraph 21, sets out quite clearly, in my view, what it is that the father of the child is complaining of. He says as follows:
I feel that these breaches fall under the orders made on 13 June 2006 such as:
(I will number them although they are not actually numbered here):
(1)The first breach was on Pt 4 and Pt 5 as the applicant can never be there as my family have to her place of residence instead of [L] Train Station as orders state clearly.
(I have not tried to put that into any better English):
(2)The second breach was on Pt 7, as the AVO interim orders would not be in place on her new boyfriend if the applicant did not breach this order for what she has allowed what has happened.
(3)The third breach is according to the orders from 21 December 2006 on Pt 4 and 6, as the applicant was not at the meeting point for the paternal aunty several hours later.
(4)The fourth breach is that of the orders of 21 December 2006 Pt 7 and accordance with the orders of 13 June 2006 Pt 4(a) as the applicant is handing the child to other people instead of the father, which is me.
As to the first breach, I gather it to be that the handovers have not been taking place at L Train Station, as the orders clearly state they should be. This I have gleaned from the scatter gun approach. But none of the persons who were meant to be there, or such persons who have not been there, are called to give evidence. The evidence, such as there is, and the submissions from the father, are explicit on terms of threats to his safety and actions of the Department of Community Services and threats that have been made to him and to his carer. As for the evidence as to the changeovers, which have been carried out by people other than the carer, it is such that, whilst I have little doubt that what they state is probably the situation, I have no acceptable evidence, in the affidavits, that that is the circumstance.
I will deal then with the third breach. The third breach is that the applicant was not at the meeting point for the paternal aunty several hours later. This is apparently relating to an incident when the mother is alleged to have telephoned the aunty and said that her boyfriend was too drunk, I think, to drive. Later on her father had to turn up with the child.
In relation to this alleged breach, the situation might be very different if anyone appeared to take objection to the evidence or to the lack of particulars rather than persons who knowingly ignore proceedings such as this. I have had verified on oath the circumstances set out in annexure E to the father’s affidavit of 1 May 2007 relating to 27 January 2007. On the evidence that he had heard on speaker-phone what the mother had said, I am convinced that on that day the mother did not have the child at the meeting point where she ought to have, L Station, and that she was well aware that she should have done so in accordance with the order. That contravention is made out.
The second breach relied upon was of Pt 7 and the fourth breach is also of Pt 7. The fourth breach relates to the applicant "handing the child to other people instead of the father, which is me". This relates, I have heard by way of submission, to alleged statements by Collier J, prior to the orders he made being pronounced that, if the mother were not to have the child, or did not wish to have the child, then the child should be given to the father.
The defect with this allegation of breach is that the orders do not, unfortunately, record what his Honour is reputed to have said. The remedy for this is, as I have suggested to the father, that he ask his Honour to make it an order if that is what his Honour intends to do. It is not possible to breach someone for an order, when it is actually not part of the order. While the child is with him, or while the child is with the mother, if there are no specific restrictions placed upon them, then they are at liberty to deal with the child in accordance with the child's best interests. That breach is not established. It is dismissed.
So that leaves then the second breach that was Pt 7 as “the AVO interim orders would not be in place on a new boyfriend if the applicant did not breach this order for what she had allowed what had happened”. This is an elliptical reference back to the alleged hitting and kicking of the child by the boyfriend.
This alleged breach gives me a great deal more difficulty, because of the seriousness of it. It shows up the complexity that litigants in person have to face in endeavouring to bring to justice those who may be breaching orders of the Court, which fundamentally affect the safety and wellbeing of a child. I will say no more about that. But whilst it may be that, if the mother were represented or took the interest to come to Court, objections may be taken, it seems to me that the father has done all a father can do, not as a lawyer would have done it but as a layman has done it. He has overloaded the Court, from his “shotgun” approach, rather than concentrating on the areas that should have been concentrated on. Order 7 of 13 June is that:
Neither parent is to physically chastise or discipline the child or permit, cause or allow any other person to do so.
As I review the evidence it will be seen how important this matter is to the child. Whilst it may be an inconvenience that people are not at railway stations, it seems to me that an order to protect a child physically is a very serious matter indeed. The details, come from a statement, exhibit G of the father's mother, the grandmother of the child. There the child expressed a fear of Mr P, her mother's boyfriend, and claimed in front of the mother and a woman, Mrs H, of the school, that she did not like the new boyfriend because he hates her, he hurts her, "he hurts me".
The child then indicated, with a closed fist, and said, "He hits me in the head" and started to tap her head. She also said, "He puts me in a dark room; he tells my mum he just wants her, not me or my brother”, and Mrs H promised to help. Again she reported to the paternal grandmother, again the feeling that the man hated her, that "he just wants her, not me and my brother. He threw [the child’s brother] and my photo on the ground and smashed it when he was angry. He said, "Go to your room you fucking little bitch”. I heard him tell my mum he just wants her not me or my brother”. This was reported to the police.
The notice of abuse served on the mother at the same time as the contravention application also stated:
The mother's boyfriend has been mistreating the child and police and DoCS have put an AVO on the mother's boyfriend which returns to Court on 14 May 2007 and that the child had been questioned about such abuse.
Of course I can not assume whether an AVO will be successful or not. The mere putting of an AVO on anybody is not evidence of anything. However there is a clear allegation that the mother's boyfriend had been mistreating the child and that police and the Department of Community Services had taken steps. I notice the first allegation, that the mother was hitting the child and locking her in a dark room, call the child a “little bitch” is not what the mother-in-law reported the child had said: it was what Mr P, the mother’s boyfriend, had supposedly said to the child, not what her mother had said to her.
As to the maltreatment of the child, the evidence from those affidavits is scant. But also into evidence came an affidavit from Ms A, filed in the Children's Court, and tendered before me as a sworn statement. Because it is an exhibit it has not been served on the mother but the details in it are extremely concerning. I pick up some critical points from it. It has a great deal of material in its 16 pages and 86 sections but item 6 is:
The Department has received a number of reports outlining history regarding [the mother]'s partner, Mr [P] kicking and punching [the child]. [The child] was interviewed by case worker regarding these incidents and confirmed this. The Department therefore sought an apprehended violence order on 13 February 2007 preventing Mr [P] having any contact with [the child]. Since this time the Department has received numerous reports that Mr [P] has violated the conditions of the AVO and attended [the mother]'s home while [the child] was there.

On 27 April 2007 DoCS received two reports regarding the child's welfare. The reporter alleged:
The child continues to disclose Mr [P] visits the home and stays at the mother's house. (Details followed)
Further there was a report that Mr P had been coming into the child's room at night. On one of these occasions the child had said that she had been told by Mr P not to tell anyone that Mr P was coming to the home or the mother would get into trouble. The child said that this is what her mother had told her. If that was so it would show guilty knowledge on behalf of the mother.
Ms A also swore that there had been a report from the paternal aunt as to what the child had been doing. On 27 April 2007 Ms A, with another case worker, interviewed the child and she had complained to them that the boyfriend had woken her up. She said:
He lifted my bed up and then he smacked me on the bottom. I said, "What did [Mr P] use to smack you on the bottom?" [The child] said, "A wooden spoon. He woke my brother up by tapping him on the leg and talking to him and he woke up and I woke up and then me and my brother put makeup on [Mr P]." And she said, "Let me check if I understand, [Mr P] tried to wake you up by lifting your mattress, smacking you on the bottom with a wooden spoon?" The child said, "Yes."
There was then talk about rude words. She said:
"What happened when [Mr P] was hiding under your bed the day before you came to nan's?" "Mum came in and got him and he got into big trouble with mum."
There is then a history of the things which are meant to have occurred, some of them unfavourable to the mother, some unfavourable to the father. Here I am only dealing with an alleged breach by the mother of failing to stop the child being disciplined in breach of that order. Paragraph 56 says:
On 7 February 2007 DoCS received two further reports stating [the child] was fearful of returning to her mother's house because of physical abuse by Mr [P]. Case workers [Ms V] and [Ms J] responded to this report, interviewed [the child] at her school. [The child] disclosed that she had been kicked in the head on two occasions by Mr [P] as well as being hit and punched by him all over her body. She disclosed Mr [P] and her mother fight; Mr [P] had broken a window. She expressed she was fearful of Mr [P].
The father, the mother and Mr P were interviewed in relation to that disclosure. The mother advised the case worker that she did not believe the child's disclosure, and said that if she had to choose between the child and Mr P, she would choose Mr P. The AVO order was then taken out to exclude contact between Mr P and the child. On 16 February 2007 the mother left a voice message on case worker Ms J's telephone stating that she did not want to care for the child any further, and that she could live full-time with her father.
The mother later told case worker Ms J she had changed her mind and wanted the child to visit her at times when she had contact through the Family Law Court interim orders. However the mother continued to express the view that if the AVO were granted for two years, as DoCS requested, she would give up the child's care to her father as she wanted to pursue her relationship with Mr P, by whom she intended to have a child.
The AVO was heard on 27 February 2007 and granted. Later Mr P applied for what is called an “annulment”. An interim AVO remains in place until the matter goes to hearing on 14 May 2007. I have no further evidence as to those proceedings.
DoCS later assumed care of the child and whilst there is a great deal more on that affidavit I will not go further into it at this stage.
The question then is whether, on that evidence, I can be persuaded to the appropriate level of proof which is, as I understand it, the balance of probabilities, whether or not the charge is made out. The second breach was on Pt 7, “as the AVO interim orders would not be in place on a new boyfriend if the applicant did not breach this order for what she is allowed and what has happened”.
It seems to me the nature of the breach needs to be teased out of that. Were it opposed, I have no doubt there would be opposition to teasing it out. But where, as I say, a party has chosen not to take part in proceedings, it seems to me that it is clear, when read with the notice of child abuse served on the same day, that the allegations were that the mother's boyfriend had been mistreating the child and chastising her by punching her and hitting her and hitting her with a wooden spoon and that the mother had permitted it, indeed encouraged it, and indeed stated that she would choose the man over the child, if the AVO remained in place.
That being so, in the unusual circumstances of this case, I am persuaded, on the balance of probabilities, that that order has been breached and that the mother has not seen fit to attend, challenge or offer any reasonable excuse for her conduct.
I therefore find that there have been two breaches made out: one is that the mother failed to prevent the child being chastised physically and disciplined contrary to order 7 of the orders; and that there was a breach on 27 January 2007 by the mother not attending for changeover at the L Station as ordered.
The two breaches I find are the mother knowingly failed to prevent her boyfriend from physically disciplining the subject child as complained of by the child, and secondly the mother knowingly failed to attend at changeover at 5 pm at L Station on 21 January 2007.

I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Waddy

Associate

Date: 16 June 2007

[2007] FamCA 1402

16 June 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Breach

Penalty

Remedies