Hafner v CD
[2010] QChCM 2
•11 October 2010
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Hafner v CD & Ors [2010] QChCM 2
PARTIES:
BRADLEY PAUL HAFNER
(applicant)
v
CD
(first respondent)
KD
(second respondent)
ET
(third respondent)
FILE NO/S:
CCM2738/10(4)
DIVISION:
Childrens Court (Magistrate)
PROCEEDING:
Application that a parent pay compensation
ORIGINATING COURT:
Mareeba Childrens Court
DELIVERED ON:
11 October 2010
DELIVERED AT:
Mareeba
HEARING DATE:
13 September 2010
MAGISTRATE:
Braes TJ
ORDER:
Application dismissed in relation to all respondents.
CATCHWORDS:
CRIMINAL LAW – COMPENSATION – CHILDRENS COURT – should parents pay compensation
Youth Justice Act 1992 (Qld), s 258
COUNSEL:
Applicant appears on his own behalf
D Anderson for the respondents
SOLICITORS:
Police Prosecutions for the applicant
ATSILS for the respondents
INTRODUCTION
This is an application by Sergeant Hafner of the Queensland Police Service pursuant to Section 258 of the Youth Justice Act.
Section 258 provides the Court may call on a parent of a child to show cause why the parent should not pay compensation where a child has been found guilty of a personal or property offence.
The application relates to the child DA aged 14 years.
The term “parent” for the purpose of Section 258 means a guardian of the child. DA’s mother KD, his father ET and his carer CD have been regarded as parents for the purpose of this application. The Youth Justice Act does not define the term “guardian”. The term is defined in the Commission for Children and Young People and Child Guardian Act as; “guardian, of a child, means any of the following persons—(a) a person who is recognised in law as having all the duties, powers, responsibilities and authority relating to the child that, by law, parents have relating to their children; (b) a person in whose favour a parenting order is in force under the Family Law Act 1975 (Cwlth); (c) a carer of the child under the Child Protection Act 1999; (d) a person who is entitled to the custody of the child under the Adoption Act 2009.
On the 4th of May 2010 DA was sentenced to four months detention and was to be released on a 3 month conditional release order for two offences of enter premises and commit an indictable offence by means of a break; however DA would not agree to the terms of the conditional release order and was therefore detained.
On the 4th of May 2010 I called upon CD and KD to show cause why one or both of them should not pay compensation to DA’s victim.
Compensation is sought on behalf of the Complainant hotel in the sum of $1,353.50.
Evidence has been by way of sworn affidavit filed on behalf of the Applicant and the First and Second Respondents.
CD (37) referred to in submissions as the cultural grandmother of DA has the day to day care of DA. She is in receipt of Centrelink benefits.
[10]KD (34) is the mother of DA. She is in receipt of Centrelink benefits.
[11]Sergeant Hafner submits (see paragraphs (h) and (i) of his affidavit) that DA has clearly had inadequate supervision as evidenced by his offending behaviour and various breaches of bail conditions. DA’s history is not especially bad. He has however been before the Court on a number of occasions over the last twelve months.
[12]It is time the Court drew a line in the sand and made parents realise they carry a heavy burden of parental responsibility towards their children. The community demands it. Mrs Dooley from the local Justice group told me when DA was before the Court on the 8th March 2010 that local businesses are sick and tired of the amount of break and enters that are occurring, most of which are focussed on alcohol.
[13]The Complainant in the substantive offences is the Graham Hotel, one of the favourite break and enter targets of criminals in Mareeba. It has been broken into on numerous occasions and had substantial amounts of alcohol stolen. The evidence before me does not indicate whether DA may have been dealt with for breaking into the hotel on any previous occasions.
[14]On the 23rd of August 2010 I called on DA’s natural father ET to show cause why he should not be ordered to pay compensation.
[15]ET has filed no material in answer to the show cause notice.
[16]The Prosecution has filed no more material in respect of ET.
[17]The Respondents, CD and KD, have not filed any more material in respect of ET.
[18]From the evidence before me ET was not aware he was the father of DA until DA was 7 months of age. It appears his involvement with DA has been minimal.
[19]Mrs Dooley did advise me on the 23rd of August 2010 that DA does “hang” with ET.
[20]It would appear ET has completely abandoned his responsibilities in respect of DA. ET has not filed any material in these proceedings. It is at odds with common sense that a person who has completely abrogated his parental responsibilities should not be held responsible for the actions of his offspring, especially where as in this case ET has apparently not acted in any way to provide for DA.
[21]Prima facie I am of the view that ET has contributed to the fact the offence happened by his not adequately supervising DA.
[22]So far as the evidence before me is concerned it is generally inadequate.
[23]On the 23rd of August I advised the parties of the decision of Judge Wall DCJ in the matter of the Queen v CB and KE and pointed out in that matter evidence was taken and witnesses cross-examined. None of the parties in this application asked to call any evidence or cross-examine any deponent. It may be that I have made an error in procedure in originally calling for affidavit material instead of listing the matter for a formal hearing.
[24]It is my belief now that procedurally upon the return of the show cause notice I should have listed the matter as a hearing. This matter has proceeded on the basis of the filing of affidavits by the Respondents and the taking of submissions.
[25]The Act is silent on the procedures to be adopted in determining the show cause and the method of calling evidence, other than confirming the proceeding is a civil proceeding. The Court does however have to be satisfied beyond reasonable doubt of the matters set out in Section 258(1).
[26]Sergeant Hafner says in paragraph 4 (l) “The only reasonable inference that can be drawn from the submissions outlined above is that the parent/guardian of the child have contributed to the fact that the offence happened by not adequately supervising the child, when the ongoing history of the child’s offending behaviour and breaches of bail curfew conditions over an extended period of time demanded a greater degree of supervision and restriction on the child’s movements (particularly at night time), than was exercised.”
[27]In response KD says in paragraph 9 “DA and Algin come to see me occasionally. I have tried to influence the behaviour of DA and Algin to ensure that they stay on a straight path. However DA in particular is not interested in what I try to tell him. I know Denise also tries very hard to get DA to change his ways but he doesn’t seem to listen” This is a rather pathetic statement of parental responsibility.
[28]KD does not depose to any of the history of her parenting of DA especially the supervision, guidance, encouragement, and discipline she utilises in parenting DA.
[29]KD provides no detailed statement of financial circumstances that would assist in determining her financial status, other than she is on Centrelink benefits and all her money is spent on food and accommodation for the other four children in her care.
[30]KD appears content to have abrogated her parental responsibilities informally to CD. The burden of parental responsibility cast upon a parent is I think higher than that exhibited by KD.
[31]KD is to a lesser extent in the same boat as ET. She appears to have nothing to do with the day to day care of DA and appears content to abrogate her parental responsibilities in favour of DA residing with CD.
[32]CD however is in the position of having no formal authority over DA. The only authority CD would exercise over DA would be cultural, but that does not appear to have any impact on DA’s offending ways.
[33]Whereas ET has never had any parenting role in respect of DA KD I assume was responsible for placing DA with CD. KD does according to her affidavit have some contact with DA.
[34]Prima facie I am of the view that KD has contributed to the fact the offence happened by not adequately supervising DA.
[35]CD says in paragraph 9 “I try to do my best for the children in my care but DA in particular is a real problem for me. I speak to him constantly about his offending behaviour. I have told him that it is wrong and that the consequences of his offending will lead to detention if he does not mend his ways. When I tell him this, he seems to listen but it doesn’t seem to sink in at all.”
[36]Once again this is an inadequate statement of CD’s supervisory regime.
[37]There is no suggestion that as a consequence of DA’s actions of leaving the house CD takes any steps to bring him home. One would think a caring responsible person would, immediately the child’s absence was discovered try to locate him and/or seek assistance from the responsible agencies to find him. There is no suggestion of any discipline by CD towards DA. There is no mention of education. There is no detailed statement of financial circumstances other than she is on Centrelink benefits and all her money is spent on food and accommodation for the children in her care.
[38]From the submissions received it is apparent that CD is not DA’s grandmother. The arrangement whereby CD looks after DA is an informal one, the only formality appearing to be that she receives Centrelink benefits to care for him. Neither KD nor ET assists financially in DA’s up-keep.
[39]I do not wish to be unduly critical of CD as she provides a home to DA and other children, however given DA’s offending behaviour I am prima facie of the view that CD has contributed to the fact the offence happened by not adequately supervising DA.
[40]Although the arrangement with CD is informal I would urge CD to adopt standards and set boundaries for the children she elects to take into her care.
[41]Notwithstanding my concerns about the lack of control exercised by CD over DA I am not satisfied CD falls within the definition of Parent for the purposes of this application. The application in so far as CD is concerned is dismissed.
[42]It may be that the Department of Child Safety should investigate whether DA is a child in need of protection and take appropriate measures to ensure he receives suitable lawful placement and supervision.
[43]KD and ET are the parents of DA. They have both sought to ignore their parental responsibilities towards DA. Maybe KD thought that by placing DA with CD she had fulfilled her obligations to him. I do not think this is so as the placement is informal and CD exercises no control over DA, and has no lawful capacity to do so. The relationship between CD and DA appears to be no more than that of a boarder.
[44]Upon a consideration of the evidence before me I am satisfied beyond reasonable doubt that –
Compensation for the offence should be paid to the Complainant, and
KD has contributed to the fact the offence happened by not adequately supervising DA, and
ET has contributed to the fact the offence happened by not adequately supervising DA.
[45]In determining whether it is reasonable for KD to pay compensation I have regard to her financial circumstances. This area has not been explored very well in the material before me. In the matter of CB & KE the parents were in receipt of benefits, but did have some small surplus of funds. The consideration of whether it is reasonable for KD to pay compensation is not I think limited to a consideration of her financial circumstances, however Section 259 (9) requires the Court to have regard to the parent’s capacity to pay, and the effect the order would have on the parent’s capacity to provide for dependants, when considering the amount to be paid by the parent by way of compensation.
[46]KD is in receipt of $1,000.00 per fortnight by way of benefits. She has nothing left after the payment of household expenses.
[47]I cannot in the circumstances be satisfied beyond reasonable doubt that it is reasonable that KD should be ordered to pay compensation for the offence.
[48]The application in respect of KD is dismissed.
[49]In determining whether it is reasonable for ET to pay compensation I have regard to the circumstances of his involvement with DA as I understand them. ET has had no supervisory role at all in respect of DA. He does not contribute to DA’s upbringing morally, socially, culturally or financially. On the one hand it may be thought in such circumstances ET as DA’s father should shoulder a high degree of responsibility for DA’s bad behaviour. However in circumstances where ET has had nothing to do with DA, and I expect has not been invited to exercise any parental influence over him, it is difficult to determine that it is reasonable he should be ordered to pay compensation.
[50]I cannot in the circumstances be satisfied beyond reasonable doubt that it is reasonable that ET should be ordered to pay compensation for the offence.
[51]The application in respect of ET is dismissed.
0
0
1