HAYES & STAPLETON
[2014] FCCA 1692
•30 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAYES & STAPLETON | [2014] FCCA 1692 |
| Catchwords: EVIDENCE – Admissibility of evidence – hearsay – representation made by a child. |
| Legislation: Family Law Act 1975 (Cth), ss.65DA, 69ZV, 70NAC, 70NAF Federal Circuit Court Rules 2001, r.25B.04 |
| Cases cited: Dunne v P [2004] WASC 239 In the Matter of the L-W Children [201] EWCA Civ 1253 |
| Applicant: | MR HAYES |
| Respondent: | MS STAPLETON |
| File Number: | SYC 2750 of 2007 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 24 June 2014 |
| Date of Last Submission: | 30 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2014 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor for the Respondent: | Ms Swan |
| Solicitors for the Respondent: | KWS Legal |
ORDERS
Counts 3, 4, 5, 6, 7, 8, 11, 13, 14, 16, 19, 20, 23, 24 and 25 contained in Application 1 filed on 13 February 2014 are dismissed.
Counts 1 and 2 of the Application A2 filed on 13 February 2014 are dismissed as incompetent.
The Applications are adjourned to Tuesday 2 December 2014 for further hearing at 10:00 am.
The Respondent is to file and serve an affidavit stating the facts upon which she seeks to rely by Friday 12 September 2014.
IT IS NOTED that publication of this judgment under the pseudonym Hayes & Stapleton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2750 of 2007
| MR HAYES |
Applicant
And
| MS STAPLETON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application, or rather, there are four Applications, for the Respondent Mother to be dealt with for contravention of parenting Orders made by Moore J in the Family Court of Australia on 25 May 2009. There are, in the four Applications, 31 different counts alleging contraventions of the Orders over a period of time between 24 November 2012 and 2 March 2014.
The Applicant has sought to proceed with all 31 of these counts. He has given evidence and has been cross-examined.
The Respondent’s solicitor, Ms Swan, has submitted that some of the allegations have not been made out and that the matter should proceed as an Application to vary the earlier Orders, based on an Application and an affidavit she filed on the morning of the hearing. I did not grant that Application, holding that the Contravention Application should proceed to a determination in the way prescribed by the Rules.
Ms Swan has also submitted there are 3 categories of matters that need to be considered when the Court is deciding whether the Applicant has made out a prima facie case.
First, where the evidence shows that there was chance meeting between the Respondent and one or both of the children or a meeting at a school event, where the Orders are silent and do not contain an express prohibition on contact, there can be no contravention. The Respondent relies on the decision of the Supreme Court of Western Australia – Court of Appeal in Dunne v P[1]at [26], [29] and [31]
[1] [2004] WASCA 239
Second, there is uncontested evidence that the Respondent’s car broke down at [omitted], New South Wales, on 2 March 2014. It is submitted that there cannot be a contravention where there is a force majeure issue. Ms Swan referred the Court to an English decision, In the Matter of the L-W Children[2], where the Court held:
Bearing in mind that a defendant is not in breach of a mandatory order, even if he has not done what the order required, if it was not in his power to do it, issues of force majeure are properly to be considered as going to the questions of breach rather than reasonable excuse. So, for example, if a parent taking a child for contact is prevented from going on or is delayed by unforeseen and insuperable transport and weather problems – one thinks of the sudden and unexpected grounding of the nation’s airlines by volcanic ash – then there will be no breach. Reasonable excuse, in contrast, arises where, although it was in the power of the defendant to comply, he has some good reason, specifically a “reasonable excuse”, for not doing so.[3]
[2] [2010] EWCA Civ 1253
[3] [2010] EWCA Civ 1253 at [40] per Lord Justice Munby
The Applicant submitted that this principle would not apply, because the contravention alleged was not the Respondent’s inability to deliver the children due to the car breakdown but her failure to make alternative arrangements for returning the children to their Father’s care.
It was also submitted on behalf of the Respondent in respect of what her solicitor described as “the [omitted] incident” that the Applicant had not proved that the date the children were not returned was in fact the date prescribed by the Orders.
The Applicant tendered a written submission in which he asserted that there had been “no real questions” in his cross-examination that related to the contraventions alleged. The balance of his submission goes to the parenting issues that the Respondent has sought to raise.
Applications for Contravention of Orders
Division 25B.1 of the Rules deals with Applications for Contravention of Orders. The procedure at a hearing is set out in Rule 25B.04:
At the hearing of the application, the Court must:
(a) inform the respondent of the allegation; and
(b) ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c) hear any evidence supporting the allegation; and
(d) ask the respondent to state the response to the allegation; and
(e) hear any evidence for the respondent; and
(f) determine the proceeding.
The Court has completed the first four stages of the hearing. What must be done is to hear any evidence for the Respondent and then determine the Application.
However, before the Court can proceed with the final two stages, it is necessary, bearing in mind the submission on behalf of the Respondent, that at least some of the allegations cannot stand, to determine whether or not the Respondent has a case to answer in respect of each of the 31 allegations.
In making this determination, the Court must consider whether:
a)an allegation of a contravention is in fact a contravention of an Order; and
b)whether there is evidence upon which the Respondent could be found to have contravened the Order as alleged.
In order to make this determination, the Court must consider the evidence at its highest and disregard any considerations favouring the Respondent. The Court must decide as a matter of law whether, on the evidence, the Respondent could be found to have contravened the Order, not whether the Respondent should be so found.
Section 70NAC of the Act provides (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…
Subsection 70NAF(1) provides that the standard of proof to be applied in determining matters in proceedings under Division 13A is proof on the balance of probabilities.
The Contravention Allegations
The Applicant filed three Applications on 13 February 2014, each one supported by an affidavit sworn on 11 February 2014. For convenience, he has labelled those three Applications A1, A2 and A3. He filed a further Application on 5 March 2014, which he has labelled A4. That Application is supported by an affidavit sworn on 5 March 2014.
Application A1 contains 25 counts, referring to events said to have taken place between 24 November 2012 and 5 February 2014, all of which the Applicant claims constitute contraventions of Order 5 made by the Family Court on 25 May 2009.
Order 5 states:
Upon the completion of the three month period referred to in 4 the children spend time with the mother as follows:
(A) during school terms:
(a) for two weekends each term [the 2nd and 8th unless otherwise agreed] in the [U]/[C] area, the mother or her nominee to collect the children from school on Friday at the commencement of the period and to return them to school at the conclusion of the period;
(b) for one weekend [the 5th unless otherwise agreed] in the Sydney Metropolitan area, the mother or her nominee to collect the children from the father or his nominee at 9am Saturday from [omitted] Railway Station and the mother or her nominee to return the children to the father or his nominee at 5 pm on the Sunday.
(B) during school holidays:
(c) for the holidays at the end of the 1st and 3rd terms from the last day of school to the final Wednesday of those holidays, the mother or her nominee to collect the children from school at the commencement of the period and the father or his nominee to collect them from the Interrelate Contact Centre at [O] or other agreed venue at the conclusion of the period;
(d) for one half of the holidays at the end of the 2nd term and during the December/January school holiday period, at times to be agreed and failing agreement:
(i) for the first half in years ending in an even number, the mother or her nominee to collect the children from school at the commencement of her time with the children and the father or his nominee to collect the children from the Interrelate Contact Centre at [O] or other agreed venue at the conclusion of the period;
(ii) for the second half in years ending in an odd number, the mother or her nominee to collect the children from the Contact Centre at [C] or other agreed venue at the commencement of the period and the father or his nominee to collect the children from the Interrelate Contact Centre at [O] or other agreed venue at the conclusion of the period.
(C)at other times:
(e) if the mother is in the [U]/[C] area and not otherwise spending time with the children according to these orders, for three hours with both children on each of the children’s birthday(s) at times agreed and failing agreement from after school until 7pm if it falls on a school day and from 3pm to 7pm if not on a school day;
(f) at other times agreed between the parents in writing.
The Application is supported by an affidavit of the Applicant sworn 11 February 2014. That affidavit has also been labelled A1.
The first count claims that on 24 November 2012 the Respondent “attends the [omitted] Show and sits with the children and calls them away from our group. It is not a contact period.”
The evidence in support of this claim is contained in paragraph 8 of the affidavit, where the Applicant deposes:
24/11/12 I observe that the Mother attends the [omitted] Show and sits with the children and calls them away from our group. It is not a contact period.
The second count claims that on 26 November 2012 the Respondent “attends at children’s [omitted] training session at [U] Public School Courts from 5.00 pm to 6.00 pm and calls the children over during breaks from playing. It is not a contact period”.
The evidence in support of this claim is contained in the next sub-paragraph of paragraph 8 and is in virtually identical terms, with the exception that the Applicant has added the words “I observe”.
The third count claims that on 10 December 2012 the Respondent “attends the Year 6 Farewell at [U] Club from 7.00 pm to 9.00 pm. It is not a contact period.”
The evidence in support of this claim is contained in the next sub-paragraph of paragraph 8. It is again in virtually identical terms with only the addition of the words “I observe”. There is no other evidence.
The evidence offered in support of this claim is insufficient to establish that the Respondent has contravened the Order. There is no evidence to show that either of the subject children were present at [U] Club or that the Respondent spent any time with them. There is no prohibition on the Respondent attending [U] Club. Consequently, there is no case to answer in respect of this particular count and it must be dismissed.
The fourth count claims that on 11 December 2012 the Respondent “attends the presentation awards at [U] PS and takes the girls’ awards away with her when she leaves. It is not a contact period as per the Orders”.
The evidence in support of this claim is contained in the next sub-paragraph of paragraph 8. Again, it is virtually identical to the allegation except for the addition of the words “I observe”. This is the only evidence relied on in support of this claim.
The evidence offered is insufficient to establish that the Respondent has contravened the Order. There is no evidence that either of the children was present at the function let alone that the Respondent had any interaction with either one of them. How she obtained the girls’ awards is not explained and the Court cannot infer that she obtained the awards from the girls themselves.
There is no case to answer in respect of this particular count and it must be dismissed.
The fifth count claims that on 11 February 2013 the Respondent “attends at children’s [omitted] training session at [U] Public School Courts. It is not a contact period.” The times between which the Contravention is alleged to have taken place are stated as 5.00-6.00 pm.
The evidence in support of this claim is rather more extensive. In his affidavit the Applicant deposes:
11/2/13[4]… When I drop the girls at [sport omitted] at 5.00 pm, I observe that the Mother is parked outside and when I return to collect the girls, the Mother is inside at the [sport omitted] training. Farewells are all done again. Mother has previously sent SMS stating that she has the right by the Orders to turn up to school etc. I will write a letter pointing out this misconception. While there may be an excuse due to “car problems” for the extended contact prior to school commencing, the attendance at [omitted] training is contact without consent and not during contact periods.”
[4] The first part of this paragraph is irrelevant as it refers to events that took place earlier in the day
In my view the evidence does not support the allegation. It is not clear what “Farewells are all done again” means and it is not for the Court to infer anything from evidence that is unclear. The evidence shows that the Respondent attended [sport omitted] training at [U] School at a time when the children were present. There is no evidence that, by doing so, the Mother spent time with the children as understood by the Order. Spending time must involve something more than being present at the same venue as the children.
There is no case to answer in respect of this particular count and it must therefore be dismissed.
The sixth count claims that on 12 February 2013 at [U] Sports Ovals the Respondent “attends at [sport omitted] training and has contact with the Children. It is not a contact period as provided by the Orders”.
The evidence in support of this allegation is contained in the next sub-paragraph of paragraph 8 of the Applicant’s affidavit. It is in identical terms to the allegation except for the addition of the words “I observe that”. There is no other evidence in respect of this claim.
The evidence is insufficient. There is no evidence that either of the girls attended [sport omitted] training, although presumably at least one of them was, and there is certainly no evidence that the Respondent had any interaction with either of them that could in any way be regarded as “spending time” with the children. The Order does not prohibit the Respondent from attending the [U] Sports Ovals.
There is no case to answer in respect of the sixth count and it must be dismissed.
The seventh count claims that on 13 February 2013 at [B] Swimming Pool the Respondent “attends at [B] High School swimming carnival. It is not a contact period.”
The evidence in support of this claim is contained in the next sub-paragraph of the affidavit. Again, it is in identical terms to the allegation except for the addition of the words “I observe that”. That is the totality of the evidence in support of this claim.
The evidence is insufficient to support the claim. There is no evidence that either of the children was present at the swimming carnival at the time. The Order alleged to have been contravened does not prohibit attendance at the [B] Swimming Pool.
There is no case to answer in respect of the seventh count and it must be dismissed.
The eighth count claims that on 13 March 2013 at the Applicant’s home at approximately 5.00 pm the Respondent “comes to our home and calls out over fence at the rear gate to Ms S and myself and [X] and [Y] are in the rear garden. It is not a contact period.”
The evidence in support of this allegation is somewhat more extensive. The Applicant deposed that:
13/3/13 The Mother comes to our home and calls out over fence at the rear gate to Ms S and myself who are in the rear garden. The Mother tells us to come over and take a letter from her. [Z] flees via the front gate to touch football but the Mother later goes down to these playing fields opposite the front of the house. Ms S and I retreat inside the house and take the girls inside and advise the Mother, that we will ring the police if she comes onto the property. The Mother continues to hang over the fence and calls at us to come over but we ignore her and go inside. There is no regard for the obvious distress or the public spectacle that she is creating. She leaves a letter in the mail box and then goes down to the adjacent playing fields. [Z] is distressed by being followed. Our home is purposely not an “Address for Service” so as to avoid situations like this. It is not a contact period as provided by the Orders.
Annoying though this incident may have been to the Applicant, the evidence does not, and cannot, support a claim of a contravention of Order 5. The evidence shows that the interaction that took place was between the Respondent on the one hand and the Applicant and Ms S on the other. Whilst the evidence shows that the children were present at the time that the Respondent sought to give a letter to the Applicant and called out to him, that fact cannot by any stretch of the imagination be characterised as “spending time” with the children.
The evidence in relation to [Z] is irrelevant. She is not a subject of the Order.
There is no case to answer in respect of the eighth count and it must be dismissed.
The ninth count claims that on 2 April 2013 at the [U] Sports Club Ovals the Respondent “attends the [sport omitted] meeting on the ovals while Ms R, the coach, speaks to the girls. I go over with the girls and Ms S takes photographs of the Mother and the car parked up the street. It is not a contact period as provided by the Orders.”
The evidence in support of this claim is to be found in a further sub-paragraph of paragraph 8 of the Applicant’s affidavit. It is in virtually terms to the allegation with the addition of the words “I observe that the”.
The evidence is to the effect that the girls were present at the time although it will be a matter for submissions as to whether the Respondent’s attendance can be classified as “spending time with” the children.
The tenth count claims that at [L] Track between the hours of 9.00 am and 2.00 pm on 7 June 2013 “I (the Applicant) take [X] and another 4 students to Regional Cross Country in [L] and the Mother attends and has contact without asking. It is not a contact period as provided by the Orders.”
The evidence in support of this claim is to be found in the next sub-paragraph of the Applicant’s affidavit. It is in identical terms to the wording of the allegation except that the words “turns up” are substituted for the word “attends”. It is a matter for evidence and submission as to whether this constitutes a contravention of the Order.
The eleventh count claims that on 21 June 2013 at [K] Sports Ovals the Applicant “spoke with Ms N, a parent from [U] School who had given [Y] a lift to [K] for inter-school [omitted] games and she says the Mother was at [K]. [Y] confirmed this in a later conversation. This was not a contact time as provided by the Orders.”
The evidence in support of this claim is contained in the next sub-paragraph of the Applicant’s affidavit. It is in identical terms to the wording of the allegation.
The reference to the Applicant’s conversation with Ms N is inadmissible because it is hearsay.
The reference to the statement made by the child is not inadmissible, because it is saved by the operation of s.69ZV(2) of the Family Law Act 1975, which says:
Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
Accepting that the account of the representation made by the child is not inadmissible, it is important to consider what exactly this representation consists of. On the evidence, the child told the Applicant that the Respondent was at [K], presumably attending the inter-school [omitted] games. However, taken at its highest, the evidence does not establish that there was any interaction between the Respondent and the child. The Order does not prohibit the Respondent’s attendance at [K] Sports Ovals whilst school [omitted] games are taking place.
The evidence is insufficient to support the claim. There is no case to answer in respect of the eleventh count, which will therefore be dismissed.
The twelfth count claims that on 1 August 2013 “whilst I was at [B] Hospital, the Mother advises that she has spent the day with [Y] at the [omitted] Athletics carnival at [U], and I advise her that this is not her contact time and she should abide by the Orders”.
The evidence in support of this claim is contained in the next sub-paragraph of the affidavit. In addition to the wording of the claim, the Applicant also deposes of the Mother:
“She makes a response that the Orders were achieved by bribery and corruption!”
Leaving aside the sensational nature of the statement attributed to the Respondent, the affidavit contains direct evidence of a statement made by her that may be argued to be an admission of the subject matter of the allegation. This should properly be a matter for evidence and submissions.
The thirteenth count claims that on 4 August 2013 between the hours of 11.00 am and 5.00 pm at [C] Grounds and [U] School the Respondent “turns up at the [sport omitted] at [C] Ground during the day, but disappears quite quickly. Later Mother turns up at the bus that is taking [Y] on an excursion to Canberra. It is not a contact time as provided by the Orders”.
The evidence in support of this claim is to be found in the next sub-paragraph of paragraph 8 of the affidavit:
“Mother has contact at the [sport omitted] at [C] Ground during the day, but disappears fairly quickly. Later Mother has contact outside [U] School when the bus that is taking [Y] on a school excursion to Canberra is being boarded. It is not a contact time as provided by the Orders”.
It may well be argued that this count is void for duplicity as it appears to deal with two separate incidents on the one day. It is not clear whether the Respondent had contact with [Y] or the other girl at the [omitted] Ground. The Respondent’s attendance at the bus whilst it is boarding appears to refer to spending time with [Y] but provides no evidence of any interaction between the Respondent and the child, or whether the child was inside the bus, outside the bus or boarding the bus at the time.
The evidence is insufficient to support either claim. There is no case to answer in respect of the thirteenth count and it will therefore be dismissed.
The fourteenth count claims that at approximately 12.30 pm on 7 August 2013 at [B] High School “Mother’s car is parked adjacent to the bus bay at [B] High School when I leave school to go to sport’s[5] supervision. When I ask [X] why her Mother visited, she at first denies, then admits her Mother came up at lunch time. It is not a contact period as provided by the Orders.’
[5] sic
The evidence in support of the allegation is contained in the next sub-paragraph of paragraph 8 of the affidavit. The wording of the affidavit is virtually identical to the wording of the count itself, with the addition of the words “I later remind the school that the Mother should not have contact with [X] during school time. (Also see 5/2/2014).”
The additional sentence does not add anything relevant to the evidence.
Evidence of the Respondent’s car being parked near [B] High School does not of itself go to prove a contravention of the Order. The representation made by the child is not inadmissible because of the operation of s.69V of the Act, but, even taken at its highest, this evidence is not sufficient to establish that the Respondent spent time with the child.
The evidence is insufficient to make out the claim. There is no case to answer in respect of the fourteenth count and it will therefore be dismissed.
The fifteenth count claims that at approximately 7.00 pm at [U] School on 9 August 2013 the Respondent “attends at [U] School when the bus returns from the School’s Canberra Excursion and has contact with [Y]. It is not a contact time as provided by the Orders.”
The evidence in support of this allegation is set out in the next sub-paragraph of paragraph 8 of the affidavit. The Applicant deposes:
9/8/13 At about 7.00 pm, I go down to [U] School to pick up [Y] from the Canberra excursion and I come around the bus and am helping the driver with unloading the bags, but I can’t see [Y] but see lots of her friends, then move to the front of the bus and the Mother has [Y] at the doorway from the bus. I have to call [Y] over to get her bag and take her home. [Y] is sick with a sore throat and has already told all her good news! It is not a contact time as provided by the Orders.
This claim should properly be a matter for evidence and submissions.
The sixteenth count claims that between 5.00 pm and 6.00 pm on 12 August 2013 at [U] School [omitted] courts the Respondent contravened the Order in that:
12/8/2013 Monday go to pick up [X] from [omitted] training and the Mother’s white Ford does a U turn at the corner of the street and drives off as I pull up to collect [X]! It is not a contact time as provided by the Orders.
The evidence in support of the claim is contained in the next sub-paragraph of paragraph 8 of the affidavit. It is in identical terms to the wording of the allegation.
The evidence is insufficient to make out the claim. Driving a car on a public street does not establish a contravention of the Order. There is no evidence of any interaction between the Respondent and the child at all.
There is no case to answer in respect of the sixteenth count and it will therefore be dismissed.
The seventeenth count claims that between 9.30 am and 1.00 pm on 19 August 2013 the Respondent “turns up at [Y]’s athletics carnival at the [C] Sports Stadium and comes and sits with only [Y] between us. I feel threatened and it is not a contact time as provided by the Orders.”
The evidence in support of the claim is contained in the next sub-paragraph of paragraph 8 of the affidavit. The wording is identical to the wording of the allegation. Whilst it is irrelevant whether or not the Applicant felt threatened, there is direct evidence that would suggest that the Respondent spent time with the child [Y]. It will be a matter for evidence and submissions as to whether the allegation has been made out.
The eighteenth count claims that at 3.45 pm on 21 August 2013 in [omitted] Lane, [U], the Respondent contravened the order in that:
21/8/13 Mother is in [U] and has parked outside library and walked across to [omitted] Lane where [Y] walks home and is sitting with [Y] in [omitted] Lane at the back of the library. It is a non-contact time.
The evidence in support of the allegation is contained in the next sub-paragraph of paragraph 8 of the affidavit. In addition to the wording of the count, the affidavit goes on to say:
As the mother returns to her car, she sees me as I drive off. Then, I arrive home and unpack the car, [Y] comes in and I ask her about seeing her Mother and at first she denies it and when I explain that I have just seen her with her Mother, she says “It doesn’t happen very often!”
The evidence of the child is admissible under s.69ZV. There is direct evidence from the Applicant of his observation of the Respondent with the child.
It is a matter for evidence and submissions.
The nineteenth count claims that the Respondent contravened the Order between the hours of 9.00 am and 11.00 am on 24 August 2013 at [C] Fields in that:
24/8/2013 I [the Applicant] drove the Children from [U] to [C] for [sport omitted]. The Mother followed myself and the Children up the highway, then Mother turns up at [C] Fields where the girls are playing. It is not a contact time as provided by the Orders.
The evidence in support of the claim is contained in the next sub-paragraph of paragraph 8 of the Applicant’s affidavit. It is in identical terms to the wording of the allegation.
The evidence is insufficient to make out the claim. There is no prohibition on the Respondent attending at the [C] Fields even whilst the girls are playing.
There is no case to answer in respect of the nineteenth count and it will be dismissed.
The twentieth count claims that the Respondent contravened the Order between the hours of 5.00 pm and 6.00 pm on 26 August 2013 at [U] Public School [omitted] Courts in that:
26/8/2013 when I drop the girls off for [omitted] training, we drive past the Mother’s car which is parked about 20 metres up the street from our house. The Mother does not seem to be in the car when we go past. When I later go to [omitted] to collect the girls, the Mother leaves the [omitted] court quickly and drives off. It is not a contact time as provided by the Orders.
The evidence in support of the claim is contained in the next sub-paragraph of the affidavit. It is in identical terms to the wording of the allegation.
The evidence is insufficient to make out the claim. The evidence, taken at its highest, goes only to show that the Respondent was present at the [omitted] courts at a time the girls were there taking part in [omitted] practice.
There is no case to answer in respect of the twentieth count and it will be dismissed.
The twenty-first count in the Application alleges that between the hours of 9.00 am and 12.00 pm on 31 August 2013 at the [C] Fields the Respondent contravened the Order in that:
31/8/13 [sport omitted] semi-finals day and Mother attends and has contact with both [X] and [Y]. It is not a contact period as provided by the Orders.
The evidence in support of this claim is contained in the next two sub-paragraphs of the affidavit. The affidavit contains a description of certain events that occurred during the day, including the Respondent attending to [Y] after she had come off the field. Later, the Applicant deposed that:
We then went shopping before returning for [X] to play in [sport omitted] and again the Mother turned up and coaxed [Y] to sit with her while [X] was playing.
This is a matter for evidence and submissions.
The twenty-second count alleges that the Respondent contravened the Order between the hours of 5.00 and 6.00 pm on 2 September 2013 at the [U] School [omitted] court in that:
I [the Applicant] take the girls to [omitted] at 5.00 pm and the Mother’s car is outside and when I return at 5.50 pm to collect the girls, the Mother is at the sideline and having contact! It is not a contact time as provided by the Orders.
The evidence in support in the sub-paragraph is in virtually identical terms to the wording of the allegation. Whilst the evidence is neither strong nor particularly convincing, taken at its highest it is sufficient for the matter to be one for evidence and submission.
The twenty-third count alleges that the Respondent contravened the Order during the school day on 2 September 2013 at [U] School in that:
Mr M, Principal, [U] School, advises that Ms Stapleton has been on school grounds during the day. It is outside of contact time as provided by the Orders.
The evidence in support of the claim is contained in this sub-paragraph of the affidavit:
2/9/13 Ms S rings at about 5.30 pm and says that she has had a telephone call from Mr M, Principal, [U] School, and he asks, “Ms S, why were you on school grounds during the day?” Ms S and Mr M both realise that Mr M has rung the wrong “Ms S” and that Ms Stapleton was the intended recipient of the phone call as she had again been spotted by staff on the school grounds outside of contact as provided by the Orders!
The evidence is entirely inadmissible. It is not only hearsay, but second-hand hearsay.
There is no case to answer in respect of the twenty-third count and it will be dismissed.
The twenty-fourth count alleges that the Respondent contravened the Order between 5.00 pm and 6.00 pm on 9 September 2013 at the [U] Public School [omitted] Courts in that:
9/9/13 when I [the Applicant] go to collect the girls, the Mother is at [omitted] training. It is not a contact time as provided by the Orders.
The evidence in support is contained in the next sub-paragraph of paragraph 8 of the affidavit. It is in identical terms to the wording of the allegation.
The evidence is insufficient to establish that the Respondent had any interaction with either of the girls in any way that might constitute spending time with them. Attending at [omitted] training is not of itself a contravention of the Order.
There is no case to answer in respect of the twenty-fourth count and it will therefore be dismissed.
The final count contained in this Application is the twenty-fifth count, which claims that the Respondent contravened the Order during the school day on 5 February 2014 at the [B] High School Swimming Carnival at the [B] Pool, in that:
The Mother attends at the [B] Pool where the Children are attending the [B] High School Swimming Carnival and has contact with the Children at time not prescribed by the Orders.
The evidence in support of this claim is that:
The Mother attends at the [B] High School swimming carnival at [B] Swimming Pool. When the Deputy Principal, Ms P asks the Mother why she is having contact with the children outside of contact period as designated by the Orders, the Mother replies “ I am just going for a swim at the pool”. When the Deputy Principal tells my daughters to go back to their designated “House Areas”, they ignore the direction and go to their Mother. When my partner, Ms S, arrives to take the children home, the children refuse and start screaming that “I want to say goodbye to my Mother” and refuse to accompany her away from the pool to go home for some considerable time. This orchestrated incident is distressing to School Staff, the Children, my partner and attracts the attention of other students and members of the public and confirms to my children that open defiance is acceptable behaviour.
Distressing though this incident may have been, the evidence is entirely hearsay and inadmissible. There is no first-hand evidence from anyone who observed the incidents, either Ms S or Ms P. It appears from the evidence that the Applicant was not present at the pool on that occasion and his information comes from what he has been told by others.
As the evidence is inadmissible, there is no admissible evidence to make out the claim. There is no case to answer in respect of the twenty-fifth count and it will be dismissed.
The Application labelled A2 filed on 13 February 2014 contains three separate counts alleging contraventions of the Orders. It is supported by an affidavit sworn by the Applicant on 11 February 2014.
Two of the counts in this Application, counts 1 and 2, claim that the Respondent has contravened a document entitled “Parenting orders – obligations, consequences and who can help”. The specific part of the document said to have been contravened is a section entitled “Your legal obligations”.
When the Application was first before the Court, the Applicant was specifically asked by the Court about these two alleged contraventions, and he replied that they were part of the Court Orders. In doing so, he referred the Court to a section of the document entitled “It is important that you read this information.”
The document does indeed say:
“You have been given this document because a court has made a parenting order which requires you to take certain steps.
Note-If this document is attached to a parenting order, the information provided pursuant to section 65DA(2) of the Family Law Act forms part of the order.”
The document to which he refers is a Fact Sheet which is regularly attached to parenting orders made by a Court exercising jurisdiction under the Family Law Act. Subsection 65DA(2) imposes on the court this requirement:
It is the duty of the court to include in the order particulars of:
(a) the obligations that the order creates; and
(b) the consequences that may follow if a person contravenes the order.
Thus, whilst the Court is obliged to attach a fact sheet of this type to any parenting orders that issue out of the Court, the operation of s.65DA does not in any way make the Fact Sheet a part of the Orders in the sense that it is capable of being enforced by contravention proceedings under Division 13A of Part VII of the Act as if it were a parenting order of itself.
It follows that the Application is incompetent insofar as the first and second counts are concerned, in that they do not allege a contravention of a parenting order.
The same criticism cannot be made of the third count in that Application, as it alleges a Contravention of Order 5 made on 25 May 2009 in that, on 23 January 2014 at Interrelate Children’s Contact Centre [C] “The Mother does not return the children as agreed between the parents and has contact for more than half of the Christmas School Holidays, 2013-14”.
The allegation is supported by an affidavit of the Applicant in which he deposes at paragraphs [6] to [27] how the Respondent did not return the children to his care on 23 January 2013 as arranged, and did not return them to him until 27 January 2013, some four days late.
The Applicant has made out a case to answer in respect of this allegation.
The Applicant sets out two allegations of contravention of the Orders of the Family Court in his Application filed on 13 February 2014, which he has labelled A3.
The first count in this Application alleges a Contravention of Order 2 made on 25 May 2009, which says:
The father is to have sole parental responsibility for the children [X] born [omitted] 2000 and [Y] born [omitted] 2001.
The allegation is that on the afternoon of 1 August 2013 at [U] and [B] the Respondent contravened the order in this way:
The Mother, without any responsibility, removed my daughter, [Y], from the care of the [U] School staff and transported her by private car to [B] District Hospital and submitted her for medical examination.
The evidence in support of this allegation is contained in an affidavit sworn by the Applicant on 11 February 2014, which he has helpfully labelled A3. In that affidavit, at paragraphs [1] to [18], the Applicant deposes that the Respondent had taken the child to [B] District Hospital after she had hurt her back as a result of a fall whilst playing unsupervised on the high jump equipment at an athletics carnival.
The nub of the Applicant’s complaint is that he has sole parental responsibility for the child and that the Respondent should not have taken matters into her own hands.
The second count in this Application relies on essentially the same facts to support an allegation that the Respondent contravened Order 5 made on 25 May 2009. The allegation is that the Respondent “attended an Athletics Carnival at [U] Sports Ground and had contact with [Y] and then removed her from the care of [U] School staff and took her by private car to [B] District Hospital and remained with her at the hospital. This was not during a contact period as per the Orders of the Honourable Justice Moore given 25th May, 2009.
In my view, there is a risk that one or other of the counts will be found to be void for duplicity. The facts will not, in my view, support two separate allegations. The Applicant will need to choose which of the two he seeks to pursue, leaving the other one to be argued in the alternative.
The fourth Application was filed by the Applicant on 5 March 2014. It is supported by an affidavit sworn by the Applicant that same day.
There is only one count in the Application, alleging a contravention of Order 5 made on 25 May 2009, specifically Order 5(A)(b). The allegation is that the Respondent contravened the Order at 5.00 pm on 2 March 2014 at [omitted] Railway station in that:
The Mother does not comply with “the mother or her nominee to return the children to the father or his nominee at 5pm on the Sunday”.
In his affidavit, the Applicant deposed that the Respondent had claimed that her car had broken down at [omitted] and was not able to return the children to him in Sydney at the appointed time on 2 March. The Applicant deposed that the children had still not been returned to his care on 4 March 2014.
The Applicant has made out a case for the Respondent to answer.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 31 July 2014