Dickens and Dickens and Anor (No 2)
[2015] FamCA 256
•17 February 2015
FAMILY COURT OF AUSTRALIA
| DICKENS & DICKENS & ANOR (NO 2) | [2015] FamCA 256 |
| FAMILY LAW – CONTEMPT – Contravention of Court order – Where the Court did not accept the father’s submission that the complaint amounted to a flagrant challenge to the authority of the Court – Where the Court gave leave to the father to have the complaint heard as a contravention application under Part VII of the Family Law Act 1975 (Cth) – Where the Court recorded a denial that, without reasonable excuse, the respondent had contravened an undertaking to the Court not to discipline or punish the child – Where evidence of video recordings and transcripts of police interviews were before the Court – Where the father relies almost entirely on the child’s allegations set out in that material – Where the evidence is hearsay and it cannot be tested by cross-examination – Where little weight can therefore be afforded to the hearsay material – Where the statements by the child must be regarded with caution and not supporting a finding on the balance of probabilities – Where the father failed to establish a prima facie case for a breach of the undertaking |
| Family Law Act 1975 (Cth) – s 69ZV(2), s 69ZV(3), s 112AP Evidence Act 1995 (Cth) – s 59 |
| S & R (1999) FLC 92-834 |
| APPLICANT: | Mr Dickens |
| 1ST RESPONDENT: | Ms Dickens |
| 2ND RESPONDENT: | Mr D |
| FILE NUMBER: | SYC | 739 | of | 2010 |
| DATE DELIVERED: | 17 February 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 27 January 2015 & 17 February 2015 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Dickens, father in person |
| SOLICITOR FOR THE 1ST RESPONDENT: | Ms Kensell, solicitor of Hamish Cumming Family Lawyers |
| SOLICITOR FOR THE 2ND RESPONDENT: | Mr Kertesz, solicitor of Delaneys Lawyers |
Orders
That the mother and her solicitor may be excused on the basis that if necessary Johnston J’s Associate will indicate to them that their presence at Court is required sometime later.
That all parties are given leave to inspect the documents produced on subpoena by the NSW Police identified as S41.
That Ms N may be excused.
That the father’s Amended Application Contempt filed on 12 May 2014 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 739 of 2010
| Mr Dickens |
Applicant
And
| Ms Dickens |
1st Respondent
And
| Mr D |
2nd Respondent
REASONS FOR JUDGMENT
These are contravention proceedings. Mr Dickens, to whom for convenience I shall refer as “the father”, filed an amended contempt application on 12 May 2014, In that application the father alleged that on 14 March 2014 Mr D, to whom I shall refer as “Mr D”, disciplined and punished the father’s son C who was born in 2003, in breach of clause 3 of the undertaking which Mr D had given to this Court on 8 October 2012. That undertaking included an undertaking:
Not to discipline the children and in particular not to administer any punishment to the children.
When the hearing commenced on the last occasion, which was 27 January 2015, I informed the father that, in my view, what he was alleging was a contravention of an order under the Family Law Act1975 (Cth) (“the Act”) rather than a contempt. This is because s 112AP, which deals with contempt, provides at s 112AP(1) that subject to sub-section (1A), the section applies to a contempt of court that:
(a) does not constitute a contravention of an order under the Act or (b) constitutes a contravention of an order under the Act and involves a flagrant challenge to the authority of the Court.
I did not accept the father’s submission that what he complained about amounted to a flagrant challenge to the authority of the Court. In these circumstances I gave leave to the father to have his complaint heard as a contravention application under Part VII of the Act rather than as a contempt.
As required, on the last occasion, I orally informed Mr D of the matter about which the father was complaining, namely, that Mr D had contravened an order under the Act in that on 14 March 2014, without reasonable excuse, he disciplined and punished the child C Dickens in breach of paragraph 3 of his undertaking to the Court on 8 October 2012. In respect of that matter I recorded a denial.
I then identified from the father the material that he was seeking to rely on. This was firstly, the material contained at paragraphs 4 to 29 of the father’s affidavit affirmed on 12 May 2014. Secondly, paragraphs 5 to 13 of the affidavit by the father’s witness Ms N which was also sworn on 9 May 2014. The father also relied on a transcript and also the DVD, that is, the video recording of a police interview of C, that being an interview in June last year.
There have been various documents tendered by the father, including a police interview of Mr D in relation to the complaint and a witness statement to police by the mother, Ms Dickens. What I note from that material is that the respondent denied the allegations and that the mother said that she did not see Mr D behave towards the child in the manner which was alleged. The father has gone into great detail in respect of those matters, including in his submissions.
Going back to the father’s primary material, that is, his material in his affidavit, he says that on Saturday 15 March 2014 the child’s mother dropped C at his home at about 9.00 am. The father said that C looked sad and worried. He said that after he opened the foyer door of his building the mother said, “[C] would like you and I to have a chat.” The father said that the mother was holding C with her right hand around his neck and across his chest and when he opened the foyer door she placed her left hand around his neck and across his chest. The father said that he thought she did this to prevent C from entering the building.
He said that he declined he declined Ms Dickens’s request as he believed it was a set up. I have had the opportunity of watching the father’s recording of this, a video which he said was recorded on his BlackBerry on the occasion, and most of the matters which the fathers says in that paragraph of his affidavit, in terms of the physical aspects of it, are confirmed in the recording.
The father says that after C entered the foyer of his building he said words to the effect of, “Dad wait up. Things aren’t ok at home. Everything is not ok; she wants to talk to you about what’s going on; so she wants me to stay at yours” (and I presume that is home) “so I’m safe.”
The father then said that when they were inside his apartment C said, “[Mr D] hurt me last night.” The father says C then started to describe an incident that occurred on Friday, 14 March 2014 at about 8.00 pm.
The father says that his friend Ms N, who has also filed an affidavit in these proceedings, was at his home and she witnessed C describing the incident. And it is as follows:
Mum and [Mr D] were out. Me and [B] ([C’s] elder brother) were playing Playstation and watching rugby league in the living room, it was Manly and South Sydney, it started just before 8 o’clock. When they got home from the pub [Mr D] came to me and said, “Why are you watching rugby league? Go to bed.”
C said he walked to his bedroom and Mr D followed him. He said C said as follows:
When I got in the bedroom he kicked me in the bottom. I screamed ouch. Mum came in the bedroom then he pulled my left ear, I went ouch. Mum grabbed [Mr D] by the arm and tried to pull him away but [Mr D] pushed her away. I was scared, I lay on my bed and curled on the side. Then [Mr D] grabbed the black sleeping bag from underneath my bed and threw it at me. The sleeping bag was rolled, it’s a bit heavy, and it hurt. He threw it at me five times, it hit me in the head twice and three times in the back. My head got dizzy and my back really hurt, it still hurts now.
The father says he noted broken skin about two to three centimetres long on C’s lower back just on the right hand side of the spine and a faint bruise. He says:
I believe it was caused by the sleeping bag buckle hitting [C’s] back with force.
And then he says C said:
Mum tried to protect me but she couldn’t. She said to [Mr D], “You’re fucking picking on a 10 year old. Leave him alone.” [Mr D] kicked her in the legs, pulled her hair, he choked her, swore at her and kept pushing her out of the way. She was crying and screaming “don’t”. [Mr D] called her a s[Mr D]t and called me a cunt. [Mr D] asked me, “Where is your dad, now?” He asked me this many times. I said, “Not here,” but he kept asking me. Then [Mr D] used my mobile and called you but you didn’t answer. [Mr D] said it went to voicemail.
And then he says the child said:
Then [Mr D] grabbed the soccer ball from underneath my bed and chucked it at me twice. It hit me in the head. When [Mr D] was hurting me [Mr D’s] mum was in the living room crying. [Mr D] swore at her. [B] was in the living room. He came in the bedroom before [Mr D] threw the ball at me. [Mr D] left the bedroom. Mum stayed in the bedroom and slept in my bed. Before I went to bed Mum said, stop carrying on, because I told her that my back hurts and my head is dizzy. In the morning Mum asked me if I was okay. I said, my back is sore and my head is dizzy. [B] laughed at me, he never sticks up for me. I’m scared to go back to Mum because [Mr D] keeps hurting me.
The father said at about 11 am that day he took the child to Suburb R Medical Centre and he annexed various photos of the child. He had a doctor’s report which he annexed to his affidavit in which a Dr S noted as follows in the doctor’s consultation notes:
Came in with father. Parents separated. [C] lives with his mother and her boyfriend. Complains that he was hit on the buttocks and then while [C] was curled up in bed hit him several times with a rolled up sleeping bag. Now complains of lower back pain. Spinal flexion limited. Fingers to knee. Two centimetre abrasion with surrounding bruising in lumbar area lateral to L2. No other injuries. Father going to report matter to the police.
The father described how that afternoon he took C to Suburb T Police Station and expressed concern about the child’s safety. Suffice it to say that the father was very dissatisfied with the manner in which the police attended to his complaint. It is the case that there was not any interview of the child until something like three months later.
The evidence contained in the affidavit by Ms N commences at paragraph 5 and it is very similar to the account which the father has given. It emerged during the cross-examination of both the father and Ms N that there were some variations.
The father said that he had taken notes on the way through, as I understood his evidence, of the child giving an account. Ms N’s version was somewhat different. She said he did not take notes during that time but she understood that he made some notes shortly thereafter because she said when they came to prepare the affidavits it was the father who prepared the affidavits. He prepared a draft affidavit for her. She read that affidavit. There was some editing done. She said it was basically right and clearly the notes were a formative and fundamental part of these accounts.
In any event, what Ms N says is as follows. On Saturday 15 March 2014 around 9.00 am she was at the father’s home. When C arrived he was crying. She asked him, “What’s wrong?” C said, “[Mr D] hit me and Mum said it’s not safe for me to be with [Mr D] anymore.” She said C continued to cry while Mr Dickens was consoling him and asking him if he was okay and to explain what happened. C said, “Mum wants to talk to you about it because she wants to do a deal for me to stay here with you.” Mr Dickens called Ms Dickens and handed C the phone. C left a voicemail message and said, “It’s okay, now, Mum. Dad understands.”.
She said when she prompted the father to tell her what was going on he said the mother wanted to talk to him, saying, “We want to speak to you,” but he said he did not want to engage her and just wanted to bring C in. And then she gave C’s alleged description of the incident at paragraph 7. She said that C said that [Mr D] and his mum had been at the pub and when they came home from the pub he and his brother were playing Playstation and watching the rugby league. C said that [Mr D] just got angry, picked on him for watching rugby league and sent him to his bedroom. C said that when he entered the bedroom, Mr D kicked him in the back, he pointed to the high side of his bottom, then C curled up in bed, and Mr D threw a sleeping bag at him, and hit him around the head and the back. C said that his mother came into the bedroom and tried to intervene, however Mr D turned on her and pushed and kicked her. C added that Mr D pulled on his ear and picked up a soccer ball with both hands, raised it above his head and threw it at his head. Nick was quite animated when he described the incident and was demonstrating with his hands and body how Mr D assaulted him. He also said that Mr D called him a cunt and his mother a slut.
She said that C complained of a sore back, in particular when he was bending and twisting. She said his father attempted to look at C’s back and tried to lift his t-shirt, however C stopped him and looked embarrassed, and this was confirmed during the course of her cross-examination. Ms N said she left the living room and went into the bedroom to pack her bag. She said when she returned to the living room, the father had taken some photos of C’s back and said that he has a mark on his back. The father showed her the photos of C’s back. She said C was walking around hunched over, with his hand on his lower back, and kept saying his back was very sore. And she said she suggested to the father to take the child to the doctor.
I have read, as I say, the transcript of the police interview with C, the transcript of the police interview of the respondent and the police statement of the mother. Not only have I read the transcript of the police interview of C, but at the father’s urging, I also took time to view the DVD recording of the police interview, or at least the important parts thereof. And in this I was assisted by a two-page document which the father had prepared, referring to specific questions as they were set out in the transcript.
It is quite a lengthy interview but I summarise the relevant matters, commencing with question 116. C was saying to the police interviewer that his father had said to the court that C had told him that he had been side kicked in the head, that he had been hit with a beer bottle, that Mr D was hitting him and that Mr D did all of that.
Then the child said to the police officer conducting the interview, “Well, all that was just untrue” that is, those things which had been attributed to him. And this was in the broad context of the police officer having made it clear at the outset of the interview that it was important to tell the truth.
And then the police officer asked, “Have you ever been assaulted by [Mr D] before?” and the child said, “No.” Then the child went on in response to questions which the police officer directed about was there something good about Mr D, or what does he think of Mr D. The child volunteered that Mr D can really be the best role model. My perception about that part of the interview is that C had said those things to his father critical about the respondent, but he indicated to the police interviewer that that was not true.
On the other hand, after some time in the interview, and certainly after quite a few questions, the child said later that he remembered a fight between his mother and his stepfather. He said that they had had a bit of an argument and, again, in the context of things that were true and things that were not true, he said he had remembered this occasion. He said that they had had a bit of an argument, and Mr D had been physical to his mother. The police officer established that that had been earlier in 2014. The child said that Mr D hit him with a sleeping bag and he was hurt on the back. He said that Mr D got angry and frustrated, and said that he was being a smartarse and said it was his fault that the court was happening. He said, on at least a couple of occasions, that Mr D had apologised afterwards.
The child said that the respondent had pulled his ear and hit him with a soccer ball. He said that this mother had tried to protect him. He said that before coming inside, his mother and the respondent had been arguing out on the lawn and then they came inside and were arguing in the lounge room.
He said then they, being the respondent and his mother, entered the bedroom with himself and B. He said then Mr D pulled his ear, threw a soccer ball at him and threw a sleeping bag at him. Then the police officer asked whether the respondent hit him in the head and the child said no. Then the child said that the respondent had thrown the ball at his head and that it hit him. He said earlier in the night, and these were not the precise words used, but the substance of it was that the respondent did kick him on the bottom and he did punch him. He said he hit him with a sleeping bag three times earlier. Before saying that, the child had said that there was a buckle on the sleeping bag and that is what hit him.
I referred earlier to the father taking the child to the doctor, and the doctor identifying an abrasion on the child’s back. I referred to the doctor’s notes and to the fact that I had seen photos annexed by the father to his affidavit which showed what appeared to be a bruise on C’s lower back area. The father also relied on various documents by way of exhibits, including a COPS entry of a complaint against the respondent in November 2003 recording an incident of what appeared to be family violence between the respondent and the child’s mother. There was a reference to them screaming at each other and the mother running out of the house crying. Then the report recorded that the respondent came running out of the home and threatened to kill the informant and his children. The informant apparently was a male who was just passing by.
There was some debate about the admissibility of those parts of the affidavits of the father and Ms N which I have included in these reasons. The material was objected to on the basis that it was hearsay. The father pressed it on the basis of s 59 of the Evidence Act, and included in our debate was reference to ss 69ZV(2) and 69ZV(3) of the Family Law Act which enable the Court to admit hearsay material and to place appropriate weight on that material. So on the basis of a combination of those provisions, that is those sections of the Family Law Act and the Evidence Act, I admitted that material.
There was also objection taken to the police interview of C coming into the evidence and, after some consideration and including the case which was cited to me by the learned solicitor for the respondent of S v R (1999) FLC 92-834, which dealt with admission into the evidence of a transcript of a police interview, I ruled that that material could also come into the evidence. And, as I have said, that has been a large part of the father’s case. In fact, the father relies almost entirely on C’s allegations as set out in that material; that is, his affidavit, that of Ms N and as contained in the police interview of C.
As I have said this is hearsay evidence. It cannot be tested in the usual manner by cross-examination. I regard this as troubling in itself. But, in my view, little weight can be afforded to this hearsay material, particularly in circumstances where the child conceded to police in statements attributed to him by his father alleging that the respondent had side-kicked him in the head and C had been hit by a beer bottle, apparently implying that the respondent had been involved in that and that the respondent had been hitting him when the child told police this was untrue.
In these circumstances, in my view, the statements by C to the police and to his father and Ms N must be regarded by this Court with great caution; being unreliable and not capable of supporting a finding even on a balance of probabilities that the respondent has dealt with C in the manner alleged by the father.
In all the circumstances, in my view, the father has failed to establish a prima facie case for a breach of the undertaking as alleged and I propose to dismiss the application.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 17 February 2015.
Associate:
Date: 14 April 2015
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