Finch & Harris
[2014] FCCA 2152
•19 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINCH & HARRIS | [2014] FCCA 2152 |
| Catchwords: PRACTICE & PROCEDURE – Procedural fairness – reasonable excuse – where respondent required to establish reasonable excuse for contravention of orders. |
| Legislation: Family Law Act 1975, ss.70NAC, 70NAE, 70NAF, 70NEA, 70NEB, 70NEC Federal Circuit Court Rules 2001, rr.13.03C, 25B.04 |
| Cases cited: Caballes & Tallant [2014] FamCAFC 112 Ramsay & Wade [2014] FCCA 1431 SZRUR v Minister for Immigration and Border Protection [2013] FCCA 146 |
| Applicant: | MR FINCH |
| Respondent: | MS HARRIS |
| File Number: | SYC 7893 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 26 May 2014 |
| Date of Last Submission: | 26 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2014 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | No appearance |
ORDERS
The Respondent Mother did on a date in February 2014 contravene Order 19 made on 8 May 2013 by not providing mail unopened to the child X born (omitted) 2003 or by destroying or throwing out or interfering with the content of the said mail.
The Respondent Mother did on 5 June 2013 contravene Order 26 made on 8 May 2013 by failing to make an appointment and consult with Dr G in respect of the medical condition of the said child X.
The Respondent Mother did on a date in June 2013 contravene Order 36 made on 8 May 2013 in that she failed to contact Ms B, psychologist, for the purpose of the said child X receiving a counselling support session.
The Respondent mother did on a date in July 2013 contravene Order 36 made on 8 May 2013 in that she failed to contact Ms B, psychologist, for the purpose of the said child X receiving a counselling support session.
The Respondent mother did on a date in August 2013 contravene Order 36 made on 8 May 2013 in that she failed to contact Ms B, psychologist, for the purpose of the said child X receiving a counselling support session.
The Respondent is granted leave to file and serve an affidavit setting out the facts upon which she seeks to rely in support of any contention she may wish to make that she had a reasonable excuse for all or any of the above contraventions within fourteen (14) days from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Finch & Harris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7893 of 2011
| MR FINCH |
Applicant
And
| MS HARRIS |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of the parties’ son aged 11 years for a finding that the Mother has, on a significant number of occasions, contravened some 21 separate parenting orders made by consent on 8th May 2013. The mother, despite having been served, has not attended court.
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:
(i) 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 (subsection 70NAF(1)).
If the Court is satisfied that a person has contravened an order, that person may still establish that he or she had a reasonable excuse for the contravention (s.70NEA(1)(c)). Again, the standard of proof 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. However, in this case, where the Respondent has not attended Court, it has not been possible to inform her of the allegations and give her the opportunity to admit or deny each allegation, as the rule requires.
It is, however, important for a Court to follow the procedure and inadvisable to depart from it (Caballes & Tallant[1] per Strickland J at [17]).
[1] [2014] FamCAFC 112
Hearing
The Applicant attended Court. The Respondent did not. He relied on his affidavit of 21st March 2014, although the Justice of the Peace before whom he swore the affidavit omitted to complete the date where required on the attestation clause.
The Applicant gave oral evidence in which he affirmed the truth of his affidavit. He also made a submission and tendered various documents in support of his case.
Noting the number of allegations, I elected to reserve the Court’s decision. It goes without saying that every allegation needs to be separately proved.
The Applicant filed a further affidavit, sworn on 24th May 2014, in which he sought to provide evidence of further contraventions of the Orders since 28th March 2014. However, this document has not been served on the Respondent and, as she is unaware of these further allegations, they have not been considered because to do so would deny her procedural fairness.
The Allegations
The Applicant claimed that the Respondent had, between 18th September 2013 and the date of the Amended Application, which was filed on 26th March 2014, contravened no fewer than 21 of the 46 Orders that were made by consent on 8th May 2013. However, he made the decision not to proceed with every count, of which there were many, and told the Court that he would proceed only on the allegations of contravention of Orders 19, 26, 27, 28 and 36.
The Orders said to have been contravened are:
19.That the Mother will receive a post card addressed to X[2] or letter from the Father to X on one occasion per month and provide X’s mail to X unopened, where the Mother will not destroy or throw out or interfere in any way with X’s mail content.
26.That the Mother shall do all acts and things to make an appointment and to consult with X’s medical practitioners, in particular Dr G, Paediatric Surgeon in respect of the repair of X’s umbilical hernia and Penis circumcision or such other paediatric surgeon of her choosing within 28 days of the date of making these Orders.
27.Within 14 days of such consultation referred to in the preceding paragraph the Mother shall communicate the outcome to the father and recommendations regarding X’s repair or otherwise.
28.Thereafter the parties are to confer within a further 14 days of provision of the information referred to in the preceding paragraph in respect of the course of any procedure regarding X’s repair or otherwise.
36.That the Mother will contact and take X to receive counselling support sessions on a one to one basis with Ms B, psychologist, (“the child’s therapist”) of (omitted), (omitted) or such other location on a monthly basis and share equally in any GAP contribution if required for these sessions until August 2013.
[2] The child’s name is not published to protect his privacy
The Applicant chose to set out the allegations by referring to each order and then setting out the dates of each contravention claimed. Whilst that is understandable, it needs to be remembered that each allegation must be separately proved.
First, the Applicant claims that the Respondent contravened Order 19 on 15th December 2013 at Sydney in that:
The Respondent has not provided the child with mail from the Applicant on one occasion per month in December 2013 and February 2014 without reasonable excuse. The Respondent has destroyed or thrown out or interfered with the child’s mail content so that the child has only some, but not all of the child’s mail from the Applicant since the commencement of the Orders.
The Applicant relies on the same description to establish the second count, said to have taken place at Sydney on 2nd February 2014.
Count 3 claims a contravention of each of Orders 26, 27 and 28 at Sydney on 5th June 2013 in that:
The Respondent without reasonable excuse has not taken the child for any surgical review.
Count 4 claims three separate contraventions of Order 36, at Sydney in June, July and August 2013 in that:
The Respondent without reasonable excuse has not taken the child to a single Therapy appointment or contacted the child’s therapist, confirmed by the child’s therapist.
The particulars of the allegations appear to have been duplicated in the Application.
Evidence
The Applicant relies on his affidavit affirmed on 21st March 2014 to establish his claims. He also gave oral evidence in which he affirmed the truth of the contents of his affidavit and confirmed that he had followed up on the service of the documents by sending material to the Respondent by way of registered post.
The Applicant deposed that on 12th December 2013 the Respondent typed a letter in the parties’ Communication Book that she no longer wished to receive registered mail for the child, saying that she would give his mail to him. The Applicant replied on 15th December that he had sent the child’s December letter in his travel backpack in an envelope and asked the Respondent to give it to him. He goes on to say:
I do not believe that X received my letter in December.[3]
[3] Affidavit of Mr Finch 21.3.2014 at paragraph [40]
The Applicant goes on to depose that the child spoke to him on 2nd February 2014 and told him that he was upset because he could not find some of the Applicant’s letters and that his mother had said that she had lost them. He later said “Some of your letters have been found, maybe 3 or 4”.[4]
[4] Ibid at [41]
I am not satisfied that this evidence is of sufficient weight to establish that the Respondent contravened Order 19 on 15th December 2013.
The Applicant appears to be on stronger ground in respect of the second count, claiming that the Respondent did not provide the child’s mail to him in February 2014. The evidence is that:
a)the child told him on 16th March 2014 that he had not received the February letter; and
b)the letter was delivered by Registered Post but the Respondent did not collect it.
I am satisfied that the Applicant has made out a case in respect of the second count that the Respondent did not provide mail to the child in February 2014 in contravention of Order 19.
The Applicant claims that the Respondent contravened Orders 26, 27 and 28, which require her to:
a)consult with the child’s medical practitioners, in particular Dr G, the paediatric surgeon, about the child’s condition within 28 days of 8th May 2013;
b)communicate the outcome to the Applicant within 14 days; and
c)within a further 14 days, confer with the Applicant in respect of the course of any procedure regarding the child’s surgical repair.
In his affidavit of 21st March 2014, the Applicant referred back to his affidavit of 16th October 2013, where he set out at paragraphs [64]-[75] his evidence going to his claim that the Respondent had not complied with those Orders. As he pointed out, Order 26 required the Respondent to consult with the medical practitioners by 5th June 2013, 28 days after the date of the orders. However, he made inquiries of Dr G and ascertained on 12th July 2013 that no appointment had been made for the child to see Dr G since 28th March 2012. An email from Dr G, or at least from his rooms, forms Annexure “M” to the Applicant’s affidavit of 16th October 2013.
Accordingly, the Applicant has made out a case that the Respondent has contravened Order 26 by not consulting with Dr G as required.
However, it must follow that if there was no compliance with Order 26, it would not have been possible to comply with Order 27, which required the Respondent to communicate within 14 days about the result of the consultation. There was no consultation to trigger the commencement of the 14 days.
Similarly, it would not have been possible for the parties to confer within a further 14 days, as required by Order 28.
In short, contravention of Order 26 would not enable the Respondent to comply with Orders 27 and 28.
The evidence relating to the Applicant’s claim that the Respondent did not comply with Order 36 is contained in paragraphs [92]-[99] of the Applicant’s affidavit of 16 October 2013, to which the Applicant refers at sub-paragraph [11(c)] of his affidavit of 21st March 2014.
Order 36 required the Respondent to take the child to receive counselling support sessions from Ms B, psychologist, on a monthly basis until August 2013.
At Annexure “Q” to his affidavit of 16th October 2013, the Applicant annexes copies of emails from Ms B dated 25th July 2013 and 14th September 2013, each one advising that the Respondent had not made any appointments for the child to see her or contacted her at all.
It follows that the Applicant has established contraventions by the Respondent of Order 36 on 3 separate occasions, being the months of June, July and August 2013.
Conclusions
This is a case where the Applicant has established contraventions of Orders 19 and 26 and three contraventions of Order 36. He has, in my view, done more than establish a prima facie case because the Respondent has not attempted to defend the Application at all. She has neither attended court nor filed any Response or affidavit in reply to the Applicant’s case.
It does not end there, however.
Whether the Respondent has a Reasonable Excuse for the Contraventions
Subsection 70NEA(1) provides that Subdivision E of Division 13A applies if:
a)A primary order has been made;
b)A Court having jurisdiction under the Act is satisfied that a person (i.e. the Respondent) has committed a contravention of the primary order;
c)The person does not prove that he or she had a reasonable excuse for the contravention; and
d)Either subsection (2) or (3) applies.
What s.70NEA(1)(c) requires is that the person found to have contravened the order must prove that he or she had a 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 to be applied 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 examples of a reasonable excuse.
Subsection 70NAE(2) provides that it is a reasonable excuse 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 on the person who was bound by it; and
b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
Subsections 70NAE(4), (5), (6) and (7) provide that a person will be taken to have had a reasonable excuse for contravening various forms of parenting order:
a)if the person believed on reasonable grounds that not complying with the order was necessary to protect the health or safety of a person (including the respondent or a child); and
b)the period during which that state of affairs occurred was not longer than was necessary to protect the health or safety of the person referred to in the previous paragraph.
In my view, if the Respondent wishes to establish that she has a reasonable excuse for the contraventions that have been found, she must be given the opportunity to do so by presenting evidence in a way that can be accepted by the Court. It will be necessary for her to give evidence in an affidavit and she may be subject to cross-examination on the contents of the affidavit.
The Respondent has not been legally represented up to now, but even at this late stage it would obviously be to her benefit if she were to obtain legal representation and attend Court. It is well established that the Court should take steps to ensure that the Respondent, if she wishes to establish a reasonable excuse, is afforded procedural fairness, even if she is not represented by a lawyer (see SZRUR v Minister for Immigration and Border Protection[5]at [39]-[40]).
[5] [2013] FCAFC 146
As I have previously held in Ramsay & Wade[6] at [63]:
In my view, procedural fairness to an unrepresented respondent in contravention proceedings requires that:
(a)the respondent understands that she has the right to bring evidence to establish that she had a reasonable excuse for the contraventions that have been found;
(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 reasonable excuse, should she choose to do so.
[6] [2014] FCCA 1431
The Respondent needs to be aware that, if she chooses to file and serve an affidavit to establish that she had a reasonable excuse, it is quite likely that the Applicant may seek to cross-examine her on that evidence.
The Respondent also needs to be aware of the consequences that may flow from a finding that she contravened the primary 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 a further parenting order;
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 Applicant’s costs of the proceedings, although I note that in this case the Applicant is not legally represented.
I find that the Applicant has established that the Respondent has contravened the Orders of 8th May 2013 on five separate occasions, as follows:
a)Order 19 in February 2014;
b)Order 26 on 5th June 2013; and
c)Order 36 in June, July and August 2013.
The Respondent will be granted leave to file and serve an affidavit setting out the facts upon she seeks to rely if she wishes to establish that she had a reasonable excuse for the contraventions.
I will adjourn the proceedings to a suitable date for further hearing.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 19 September 2014
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