HARRELL & HANCOCK-HARRELL

FAMILY COURT OF AUSTRALIA

HARRELL & HANCOCK-HARRELL

[2015] FamCA 362

FAMILY LAW – CHILDREN – Contravention – application dismissed.

Family Law Act 1975 (Cth) – Div 13A

APPLICANT:

Mr Harrell

RESPONDENT:

Ms Hancock-Harrell

INDEPENDENT CHILDREN’S LAWYER:

Judy Stewart

FILE NUMBER:

BRC

1164

2014

DATE DELIVERED:

12 May 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

12 May 2015

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Galbraith of Counsel

SOLICITOR FOR THE RESPONDENT:

Schultz Toomey O’Brien

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Stewart

Stewart Family Law

Orders

That the allegations of contravention contained in paragraphs 1, 2, 3, 4, 5, 6, 29 and 38 of the Amended Application filed 7 May 2015 are dismissed.

IT IS NOTED

(A)The balance of the allegations of contravention contained in the Amended Application filed 7 May 2015 were withdrawn by the father at the hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrell & Hancock-Harrell 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 BRISBANE

FILE NUMBER: BRC 1164 of 2014

Mr Harrell

Applicant

And

Ms Hancock-Harrell

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

At the outset of this hearing of an application for certain people to be dealt with for alleged contraventions, there arises a point that needs to be determined in respect of the form of the alleged contraventions that are included throughout the Application for Contravention that the applicant father asks me to hear and determine.
The argument has arisen in the first instance on a consideration of the very first alleged contravention. The statement of the alleged contravention that is included in the Application for Contravention says this:
The respondent mother has alleged family violence and child abuse to stop my wonderful little boy [C] seeing me and exercising his right to my parenting but has not submitted the mandatory child abuse report.
I drew the applicant father’s attention to the fact that, prima facie, that statement of alleged contravention does not allege the contravention by the mother of an order affecting children. I told the father that, consequently, I consider the Court is not able to be deal with the alleged contravention pursuant to the provisions of Division 13A of the Family Law Act 1975 (Cth) (“Family Law Act”).
The father then made very well researched, very detailed and well considered submissions in response to the matter raised by me. He submits that he accepts that the statement of alleged contravention does not allege a contravention of a particular order under this Act affecting children. That concession is appropriate.
The words “order under this Act affecting children” are actually defined in s 4 of the Family Law Act. The section provides:
order under this Act affecting children, in relation to a court, means:
(a)     a parenting order; or
(b)     an injunction granted by the court:
(i)       under section 68B; or
(ii)under section 114 in so far as the injunction is for the protection of a child; or
(c)     an undertaking given to, and accepted by, the court:
(i)that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or
(ii)      that relates to a bond referred to in paragraph (g); or
(d)     a subpoena issued under the applicable Rules of Court:
(i)that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or
(ii)      that relates to a bond referred to in paragraph (g);
being a subpoena issued to a party to the proceedings for the order, injunction or bond, as the case may be; or
(e) a registered parenting plan within the meaning of subsection 63C(6); or
(f)      a community service order made under paragraph 70NFB(2)(a); or
(g)     a bond entered into:
(i)       under a parenting order; or
(ii)      under paragraph 70NFB(2)(b); or
(iii)     for the purposes of subsection 70NFG(6);
and includes an order, injunction, plan or bond that:
(h) is an order under this Act affecting children made by another court because of paragraph (a), (b), (e) or (g); and
(i)      has been registered in the first‑mentioned court.
The father submitted nevertheless that what he is alleging constitutes a contravention by the mother is one that can be dealt with pursuant to the provisions of Division 13A. It is not a contravention of an order under this Act affecting children, but is rather, in this particular instance, an allegation that she has not complied with an obligation imposed upon her by a section of the Act, namely s 67Z.
Section 67Z(1) provides:
This section applies if an interested person in proceedings under this Act alleges that a child to whom the proceedings relate has been abused or is at risk of being abused.
Section 67Z(2) provides:
The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.
Section 67Z(3) provides:
If a notice under subsection (2) is filed in a court, the Registry Manager must, as soon as practicable, notify a prescribed child welfare authority.
Section 67Z(4) provides:
In this section:
interested person in proceedings under this Act, means:
(a) a party to the proceedings; or
(b) an independent children’s lawyer who represents the interests of a child in the proceedings; or
(c) any other person prescribed by the regulations for the purposes of this paragraph.
…
The mother is included by s 67Z(4)(a) in this particular case.
The mother’s counsel, Ms Galbraith, informed the Court that her client, the mother, has not to this point in time submitted such a document, a Form 4, to the Court. It is that which the father says is effectively a contravention by the mother of a statutory obligation. It is the word “obligation” that the father refers to in his submission that this Court has the statutory power and duty to deal with this alleged contravention pursuant to Division 13A.
Division 13A is a fairly extensive division. It begins at s 70NAA and it concludes at s 70NFJ. Where the Act introduces the division, it includes a heading that says “Consequences of failure to comply with orders, and other obligations, that affect children” [emphasis added]. The first section under sub-division A of the division says:
(1)This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children [emphasis added].
(2) …
(3) The other orders that the court can make depend on whether:
(a)a contravention is alleged to have occurred but is not established (Subdivision C); or
(b)the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or
(c)the court finds that there was a contravention and there is no reasonable excuse for the contravention.
There is no reference in subsection (3) to any particular order or obligation that is referred to as having been contravened. However, s 70NAC which is immediately after 70NAB is also headed “Meaning of contravened an order”. It provides:
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; or
(b)      otherwise—he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
The sections that follow deal with requirements that are taken to be included in orders; the establishment and definition of what a reasonable excuse for contravening an order is; and the setting out of the standard of proof. Then we move into sub-division B which is headed “Court’s power to vary parenting order”. It includes a section that gives the Court that has jurisdiction under this Act the power to vary a primary order in certain circumstances.
Then we move into sub-division C. It is headed “Contravention alleged but not established”. It is about this particular subdivision applying in certain circumstances. The words “primary order” are exclusively used in that sub-section.
Then we move to subdivision D. It is headed “Contravention established but reasonable excuse for contravention”.
Then subdivision E is headed “Contravention without reasonable excuse for contravention”. It sets out the circumstances in which the Court is to deal with a person who has been found to have contravened without reasonable excuse but where the court determines it a less serious contravention.
Subdivision F sets out the Court’s powers where the Court determines there has been a contravention without reasonable excuse but of a more serious nature.
The applicant father, Mr Harrell, makes the primary submission that the use of the term “and other obligations” in the heading of Division 13A is what effectively gives rise to the Court’s power to deal with allegations of contravention of things other than “orders under the Act affecting children”. As I have already observed, he made some very well considered, well thought out and detailed, well researched submissions in which he referred to a number of decisions of the High Court of Australia dealing with statutory interpretation.
As I understood his submission, principally it is that the object and purpose of the Family Law Act is principally to ensure the rights of children to live safely and have meaningful relationships with their parents. Referring to the authorities that he did and also to the second reading speeches of the former Attorney-General, Mr Ruddock, and his representative in the Senate, Senator Santoro, at the time that the 2006 amendments were introduced to the Family Law Act by the Commonwealth Parliament, the father argued that the proper interpretation of the words “and other obligations” requires the Court to determine that Division 13A also empowers the Court to deal with alleged contraventions of “other obligations” that parents have pursuant to other parts of the Family Law Act such as s 67Z, as distinct from obligations that arise out of an order under the Act that affects children.
I am mindful of the father’s argument and certainly appreciative of the fact that the paramountcy principle applies mandatorily when deciding to make a particular parenting order in relation to a child under Part VII of the Family Law Act. However, the determination I am required to make today, in my view, is one of statutory interpretation. With respect to Mr Harrell, I do not accept his submission that the use of the term “and other obligations” in the heading of Division 13A empowers the Court to hear contravention allegations brought by one parent against another parent or other interested party for alleged contraventions or non-compliance with obligations imposed by other sections of the Act, or even the Family Law Rules, that are not obligations imposed on a parent by force of the orders made by a court under the Act that affect children.
As I indicated in discussion with Mr Harrell during his oral submissions, the use of the term “and other obligations” in the heading of the division, in my view, is simply to make it clear that obligations that arise out of the making of an order under this Act affecting children are included in those matters that are dealt with pursuant to the provisions of Division 13A. It does not include obligations that arise under the Family Law Act completely extraneously to an order under this Act affecting children. That is clear from the actual provisions included in Division 13A.
In the circumstances, I respectfully do not accept the submission made by Mr Harrell and determine that in respect of the first alleged contravention that I cannot hear it pursuant to the provisions of Division 13A and, therefore, I dismiss it.
I also dismiss the application in so far as allegations numbered 2 to 6 are concerned for the same reason. They do not allege contravention of an order or an obligation arising under an order.

Allegation 29

In respect of allegation 29 that is in the Application for Contravention that bears the filing date 7 May 2015, the father sets out in the statement of the alleged contravention that he says occurred on 28 March 2014 simply the following words:
The respondent lied to Judge Baumann
On the face of it, that simple assertion does not appear to me to satisfy requirements for particularising a contravention of an order affecting children under the Act. When asked about it, Mr Harrell the applicant father took me to paragraphs of his affidavit and read them out. He explained to me that the particular order affecting a child that he is alleging Ms Hancock contravened in this respect is that part of the order contained in paragraph 6(c) of his Honour Judge Baumann’s orders of 28 March 2014 in this matter. Relevantly, the entire paragraph 6 of that order says this:
That pursuant to Rule 15.09 of the Federal Circuit Court Rules [Dr B] be appointed as a Court Expert and:
a.[Dr B] shall complete a psychiatric assessment of each of the parents;
b.The parents shall attend on the scheduled appointment nominated by [Dr B] (currently being 27 and 28 May 2014); and
c.The father shall be responsible for the costs of the Court Expert in the first instance with the father to seek contribution from the wife in the future.
Understanding the applicant father’s argument as I have, he asserts that by the mother, through her Counsel, telling Judge Baumann something that the father asserts was incorrect or factually untrue she has somehow contravened that order. With respect to Mr Harrell, that submission demonstrates complete misunderstanding of the process. In my view, one can hardly be found to be in contravention of an order by something that has happened or said to have happened before the order was even made. Order 6(c) that Mr Harrell asserts the mother by those facts has contravened is one directed at him and places no obligation on the mother whatsoever.
Notwithstanding Mr Harrell’s submissions that he should be entitled to prosecute that alleged contravention, I do not accept such submission and I do not consider a proper contravention is alleged on a prima facie basis. I dismiss the application in so far as allegation 29 is concerned.

Allegation 38

In allegation number 38 in the application for contravention filed 7 May 2015 one sees that the alleged contravention that occurred on 28 April 2015 is particularised as follows:
The respondent failed to notify of an emergency injury to my little boy
When I asked Mr Harrell what particular order he was asserting was contravened in respect of this allegation, he took me to paragraph 9 of the orders of his Honour Judge Lapthorn of 19 August 2014. Paragraph 9 relevantly says this:
That each party be restrained from communicating with the other party, save for the sole purpose of making arrangements in relation to the child moving between each other’s home or informing the other of any emergency affecting the child.
I pointed out to Mr Harrell that, in my view, that does not impose a positive obligation on either of the parties to actually inform the other of an emergency affecting the child. He made the submission that by implication I should read that into the order. I do not accept that submission. I do not read the order as other than permitting the parties to communicate with each other where they are otherwise restrained from doing so, in the event that they need to make arrangements in relation to the child or want to inform the other of any emergency involving the child.
Mr Harrell referred me to paragraphs 114 and 115 of his affidavit that bears the filing date stamp 7 May 2015. There he says:
[Hancock] failed to inform me my wonderful son had a medical emergency and broke his arm (or something). All I received was a photo of [C] saying he had a cast and was going home. I do not know what happened, when it happened or even what part of his arm is broken. I should have been at the hospital for him.
Just at the moment I am not considering whether there ought to be an obligation imposed by court order on each of the parties to communicate any medical emergency affecting the child to the other. I am considering whether or not an existing order of the Court affecting the child has been contravened as alleged. I am not satisfied that those facts in any way establish a prima facie contravention without reasonable excuse of paragraph 9 of Judge Lapthorn’s orders of 19 August 2014 and I therefore dismiss that particular application in respect of allegation number 38.
I note that the father withdrew all of the other alleged contraventions after he considered my determination on these matters.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 12 May 2015.

Associate:

Date: 18 May 2015

[2015] FamCA 362

12 May 2015

Key Legal Topics

Areas of Law

Civil Procedure

Commercial Law

Legal Concepts

Abuse of Process

Procedural Fairness

Res Judicata