GRANGE & GRANGE

[2013] FamCA 177

FAMILY COURT OF AUSTRALIA

GRANGE & GRANGE [2013] FamCA 177

FAMILY LAW – CHILDREN – Contravention – mothers application stood over for a period of 18 months or less – leave for parties to have application restored

FAMILY – PRACTICE AND PROCEDURE – oral application made by the mother to vary parenting order – leave granted

FAMILY LAW – ANCILLARY ORDERS – where the father is restrained from approaching the children at school or at the mother’s residence – where the father is restrained from approaching the mother at her residence or place of employment – where the father is given leave to re-list the matter for a discharge or variation of the orders

Family Law Act 1975 (Cth) ss 68C, 68B, 114 and 114AA

APPLICANT: Ms Grange

RESPONDENT: Mr Grange

FILE NUMBER: CSC 787 of 2008

DATE DELIVERED: 25 February 2013

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 25 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1.The application for contravention filed in the Federal Magistrates Court on
16 November 2012 and transferred to this court on 5 February 2013 be stood over generally subject to the following:-

(a)either party may apply to the court to have the matter listed for mention before a Judge of the Family Court on the giving of seven (7) days notice to the other party and to the court;

(b)if the proceedings are not restored on or before 30 June 2014 they will be dismissed AND THE COURT NOTES the application has not been heard on its merits.

2.Leave be given to the applicant mother to make oral application to vary the parenting orders made by me on 21 May 2012 and such orders be varied by providing order 6 as follows:-

UNTIL FURTHER ORDER

3.Pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth), the father, is prohibited from:-

(a)approaching any home in which the mother, Ms Grange (“the mother”) or the children J born … July 2001, L, born … September 2002 and M … born … March 2006 (“the children”) may be residing or approaching within two hundred (200) metres of any home in which the mother or children may be residing;

(b)harassing molesting or stalking the mother and the children;

(c)causing or threatening to cause bodily harm to the mother and/or the children;

(d)entering or remaining on any premises at which the mother and/or children live or reside;

(e)entering or approaching, within two hundred (200) metres any place where the mother works or is employed; and

(f)entering or approaching, within two hundred (200) metres any school which the children attend.

4.Pursuant to s 68C and s 114AA of the Family Law Act 1975 (Cth), where a police officer believes, on reasonable grounds, that the father, Mr Grange, has since the injunction was granted, breached the injunction by:-

(a)causing or threatening to cause bodily harm to the person or persons referred to in these orders; or

(b)harassed, molested or stalked any one or other of those persons.

The police officer may arrest Mr Grange without warrant pursuant to s 114AA and pursuant to s 68C of the Family Law Act 1975 (Cth).

5.Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED

6.The above variations are interim orders.

7.The mother have a copy of these interim orders served upon the father and she file an affidavit of service in that respect.

IT IS FURTHER ORDERED

8.Leave be given for the father to apply, by written application for discharge or variation of these amended orders within twenty eight (28) days of service of this amended order upon him by way of an application in a case and an affidavit in support and IT IS DIRECTED such application be listed before me.

IT IS FURTHER NOTED

9.If such application by the father is listed before me, the mother may appear at such listing by telephone.

IT IS DIRECTED

10.My associate forward to the solicitors for the mother three (3) sealed copies of this order.

11.The order made on 21 May 2012 be varied to show the amendment so the mother is able to produce such order to such Police Officer.

12.A transcript of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

13.Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grange & Grange 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 CAIRNS

FILE NUMBER: CSC 787 of 2008

Ms Grange

Applicant

And

Mr Grange

Respondent

REASONS FOR JUDGMENT

1.Ms Grange commenced contravention proceedings against the father Mr Grange on 16 November 2012.  Those proceedings were personally served upon the father at the Cairns Court House on 19 November 2012.  The father did not appear before the Federal Magistrate on the return date which was 5 February 2013 and the proceedings on that date were transferred to my court.

2.This is a matter where the mother has asserted significant and ongoing domestic violence both to herself and to the children, the subject of the application.  In May of last year on an undefended basis I made orders that the children reside with her and that the father not approach the children or have any contact with them.  The terms of order 6 were ,and I quote:-

The father is restrained from spending any time with the children or communicating with the children or approaching them at school or removing them from school without further order of the Court exercising jurisdiction under the Family Law Act1975 (Cth).

3.The mother, in her affidavit filed 16 November 2012, deposes that the father has on a number of occasions breached that order and has been attending the children’s school which has, on her evidence, upset the children and upset her and caused her to be in great fear.  As a consequence the mother has taken state proceedings to vary the domestic violence order and other proceedings to provide a measure of protection for herself and for her children.

4.She came back to courts exercising jurisdiction under the Family Law Act1975 (Cth) by way of contravention in a way to ensure that the father complied with the order. However, the mother made it clear to me in submissions that the she did not wish to further inflame the situation as it may put her and/or her children in greater danger. As such, she requested and I agreed that the proceedings ought not to lead to a warrant for the arrest of the father but that they should be stood over for a period of about 18 months or slightly less, with leave for the parties to have the application restored.

5.However, she, and in fairness, at my suggestion, made an oral application to vary the parenting order so that it was consistent with the state domestic violence order, that is to prevent the father from approaching within 200 metres of her home, her place of work or the children’s school.  She also sought an order that if the father breached those orders, he ought to be arrested without warrant.  I was careful in my thinking in terms of that. 

6.There is significant community disquiet which is reflected in the recent amendments to the Family Law Act1975 (Cth) about domestic violence. If what the mother says in her affidavit is accurate then steps need to be taken to protect her and the children. At the same time, the father has not attended court and eschewed any involvement in these proceedings. I gave the mother leave to make that oral application to vary the Court orders, so that it offered a measure of protection but, at the same time, I gave leave for the father, once personally served, to apply to this Court to have any arguments that he wished dealt with put before the Court.

7.This seems to me to be a sensible way to meet the basic needs of these children and to ensure that they are protected and also to provide procedural fairness to the father.  I have put in place an order that if the matter does come back in those circumstances the mother may appear by telephone, having regard to the nature of the matters raised in her affidavits. 

8.Accordingly, I so order and I direct that a transcript of my reasons be taken out and placed on the Court file.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 25 February 2013.

Associate:     

Date:              25 February 2013