Jets & Maker
[2010] FamCAFC 55
•26 March 2010
FAMILY COURT OF AUSTRALIA
| JETS & MAKER | [2010] FamCAFC 55 |
| FAMILY LAW - APPEAL – Against the orders of a Federal Magistrate in relation to a contravention application FAMILY LAW - APPEAL – Section 70NAC of the Act – Where the standard of proof is on the balance of probabilities having regard to the gravity of the allegation – Where the breach must be shown to be intentional but does not require proof of contumacious behaviour FAMILY LAW - APPEAL – Section 70NAE – Where the Respondent must prove that he or she had a reasonable excuse for the contravention – Where the Act provides a definition of reasonable excuse and is not exhaustive FAMILY LAW - PRACTICE AND PROCEDURE – Where the Federal Magistrate did not adopt the correct procedure in determining the issues before him – Where there was a failure by the Federal Magistrate to appropriately deal with the application of the Father and the Mother’s response FAMILY LAW - EVIDENCE – Where the Federal Magistrate relied upon irrelevant or unproved matters in making the order, resulting in a miscarriage of justice – Where the Mother’s evidence in her affidavit and the foreshadowed evidence of the expert and lay witnesses would prime facie establish a reasonable excuse – Where the Federal Magistrate should not have refused the Mother’s application for an adjournment to call evidence – Where the Federal Magistrate should not have relied upon the evidence contained in previous family reports without giving an appropriate opportunity to all parties to be heard as to the use, if any, to be made of such evidence FAMILY LAW - PROCEDURAL FAIRNESS – Where the Federal Magistrate either prejudged significant issues, or at the very least, said things that would create an apprehension of predetermination – Where the Federal Magistrate had formed a view about whether or not the Mother would be able to establish a reasonable excuse FAMILY LAW - REDETERMINATION – Appeal allowed – That the matter be remitted for rehearing FAMILY LAW - COSTS – Orders for written submissions as to costs |
| Angaston District Hospital vs Thamm (1987) 47 SASR 177 Attreed and Attreed (1980) FLC 90-907 Brazel and Brazel (1984) FLC 91-568 Chehab and Chehab (1993) FLC 92-371 Dobbs and Brayson (2007) FLC 93-346 Douglas and Douglas (2006) FLC 93-300 Elspeth and Peter (2007) FLC 93-341 Government Insurance Office of New South Wales vs Bailey (1992) 27 NSWLR 304 Johnson and Johnson (3) (2000) 201 CLR 488 Lamereaux and Noirnot (2008) FLC 93-364 Maday and Maday (1985) FLC 91-636 McLean and McLean (1991) FLC 92-196 Sahari and Sahari (1976) FLC 90-086 White and White (1995) FLC 92-648 Zantiotis and Zantiotis (1993) FLC 92-367 |
| Family Law Act 1975 (Cth) Family Law Rules 2004 Family Law Regulations Federal Magistrates Court Rules 2001 |
| APPELLANT: | MS JETS |
| RESPONDENT: | MR MAKER |
| FILE NUMBER: | MLC | 493 | of | 2009 |
| APPEAL NUMBER: | SA | 83 | of | 2009 |
| DATE DELIVERED: | 26 March 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 3 March 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam1046 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Salamanca |
| SOLICITOR FOR THE APPELLANT: | MW Law |
| COUNSEL FOR THE MOTHER: | Mr Arnold |
| SOLICITOR FOR THE MOTHER: | Meier Dennison Guymer |
Orders
The appeal be allowed.
The orders made on 25 August 2009 be discharged.
The Contravention application filed on behalf of Mr Maker on 11 August 2009 be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate O’Dwyer.
Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by the Appellant by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other parties within 28 days of the date hereof.
Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other parties.
Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other parties within a further seven days.
Each party endorse on the cover sheet of any submissions filed pursuant to orders 4, 5 and 6, the date upon which a copy of that submission was served on the other parties.
IT IS NOTED that publication of this judgment under the pseudonym Jets & Maker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 83 of 2009
File Number: MLC 493 of 2009
| MS JETS |
Appellant
And
| MR MAKER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Jets (“the Mother”) against orders made by Federal Magistrate O’Dwyer in relation to a contravention application brought by Mr Maker (“the Father”). The parties are the parents of a two year old boy.
On 25 August 2009 the Federal Magistrate heard an application in which the Father sought to have the Mother dealt with for contravention of consent parenting orders made on 20 May 2009. The contravention proceedings related to an occasion on 7 August 2009 when the Mother failed to present the child to spend time with the Father. The Mother contended that she had a reasonable excuse for refusing to deliver the child to the Father on that day. The Federal Magistrate did not accept the Mother’s contention and made the following orders:
UPON the allegation of a breach of the orders made by consent on 20 July 2009 being proved, the Court orders that:
1. The mother enter into a bond to be of good behaviour pursuant to section 70NEC of the Family Law Act 1975 for a period of 24 months.
2. The mother provide, as agreed, the following make-up time by 25 October 2009:
i.two periods of 48 hours; and
ii.one period of 24 hours
on the same days and hours as applies under extant orders, but in addition to those already stipulated.
3. The question of the father’s costs is reserved.
The Mother provided detailed written submissions to compliment very detailed and extensive grounds of appeal. I also had written submissions from the Father.
Background
General
On 20 May 2009 the following final parenting orders were made by consent:
1. That the father and the mother retain joint parental responsibility for the child [the child] born [date] 2006.
2. That the child live with the mother.
3. That the child spend time with the father as follows:
a.From the present time until end of July 2009 each Friday 4.30pm (to be collected from childcare) until Saturday 4.30pm (to be delivered to the mother’s home);
b.Commencing from August 2009 (on a rotating fortnightly basis):
i.In week 1 from Friday 4.30pm (to be collected from childcare) until Sunday 4.30pm (to be delivered to the mother’s home);
ii.In week 2 from Thursday 4.30 pm (from the mother’s residence) until Friday (to be delivered to the childcare at commencement of childcare);
iii.Sub-paragraphs (b)(i) and (ii) to be suspended for the 14 days commencing from 24 December 2009 and for the June/July 2010 and September 2010 gazetted Victorian school holidays;
iv.For 5 nights during each of the gazetted Victorian school holidays in:
a.January 2010;
b.June/July 2010;
c.September 2010;
c.Commencing from 20 October 2010 (on a rotating fortnightly basis):
i.In week 1 from Friday 4.30pm (to be collected from childcare/kindergarten until Monday morning (to be delivered to childcare/kindergarten at the commencement of childcare/kindergarten or to the mother’s home, as is applicable);
ii.In week 2 from Thursday 4.30pm (from the mother’s residence) until Friday morning (to be delivered to childcare/kindergarten at the commencement of childcare/kindergarten);
iii.Sub-paragraphs (c)(i) and (ii) to be suspended during all gazetted Victorian school vacations;
iv.For two separate periods of one week each during the long 2010/2011 gazetted Victorian summer school vacation, the first of such periods to commence at 4.30pm on 24 December 2010;
v.For one week in each of the gazetted Victorian term school vacations;
d.Commencing from 20 October 2011:
i.During school terms (on a rotating fortnightly basis);
a.In week 1 from Thursday 4.30pm (from the mother’s residence) until Monday morning (to be delivered to kindergarten/school at the commence of kindergarten school; and
b.In week 2 from Thursday 4.30pm (from the mother’s residence) until Friday (to be delivered to kindergarten/school at the commencement of kindergarten/school);
ii.For one half of all long summer and term school holidays of the child;
e.From not less than 2 hours on a school day, 4 hours on a non-school day, on each birthday of the child and of the father (provided that, if the father’s “time spent” falls on the child’s birthday or on the mother’s birthday, then their “time spent” be suspended for not less than 2 hours on a school day and 4 hours on a non-school day on each such occasion to enable the child to be in the care of the mother);
f.On each Father’s Day from 9.00am until 4.30pm (provided that if Mother’s Day falls on a day of the father’s scheduled “time spent” then that “time spent” be suspended to enable the child to be in the care of the mother from 9.00am until 4.30pm on Mother’s Day);
g.From 4.30pm on Christmas Day until 4.30 Boxing Day 2011 and in each alternate year;
h.From 4.30pm Christmas Eve until 4.30 Christmas Day 2012 and in each alternate year;
i.Such other times (or variation to the above times) as the father and the mother may from time to time mutually agree upon.
4. That save as may otherwise be agreed upon from time to time, the father be responsible for all collection of the child to the mother or her agent or from childcare/kindergarten/school (as is applicable) at the commencement of his “time spent” with the child and for delivery to the mother or her agent or from childcare/kindergarten/school (as is applicable) at the conclusion hereof.
5. That until further order the mother and father:
a.keep the other advised at all times of their respective residential addresses and landline and mobile telephone numbers;
b.Advise the other immediately in the event that the child suffers any serious illness or injury;
c.Authorise any medical practitioner upon whom the child may attend from time to time to communicate with the other in respect of the child’s medical condition and/or requirements.
6. That until further order the mother and the father and their servants and agents be and are hereby restrained from injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of his or her family in the presence of or hearing of the child or form permitting any other person to do so.
7. That until further order or 24 hours immediately prior to the child spending time with the father and during all such time, the father be restrained by injunction from consuming alcohol to excess or ingesting, consuming or using or otherwise being under the influence of any legal or illegal drug or substance save and except for:
a.Any legal medication prescribed by a registered medical practitioner and taken or used by the father strictly in accordance with such prescription;
b.Any over the counter legal medication or pharmaceutical substance ordinarily sold in major supermarkets, or taken by the father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
8. That the father continue to provide a communication book which:
a.The parties shall utilise to communicate with each other in respect to issues concerning the child; and
b.The parties shall place in the child’s bag to travel with the child on each occasion that the child is to spend time with the father.
9. That the father do:
a.Attend and complete, as soon as practicable, an appropriate post separation parenting program (“the Program”) at Gordoncare;
b.Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
c.Pay and otherwise be responsible for all costs associated with the program as they relate to the father; and
d.Provide an appropriate certificate of completion of the program to the mother’s solicitors (it being noted that the mother has now completed the Gordoncare “Stand By Me” parent program).
10. That the mother and father:
a.Obtain a referral from their respective general medical practitioner to attend a therapeutic counselling service as is recommended by Gordoncare (if Gordoncare is unable to do so) or through the parties respective solicitors;
b.Subject to such referral the mother and father co-operate with the requirements to attend and complete such family therapeutic program in order to enable them to better communicate and co-operate as to matters affecting the best interests of the child (it being noted that the mother has attended a GP referred program with Allied Health and is currently attending counselling at Gordoncare) and if practicable, it be requested that the father be able to also attend counselling to take place at Gordoncare and the parties both attend together at therapeutic counselling (Insofar as the therapeutic counsellor considers this to be desirable) at Gordoncare or upon the recommendation of Gordoncare or (if Gordoncare is unable to do so or so recommended ) upon agreement through the parties respective solicitors.
c.Meet the costs of and incidental to such therapeutic program equally as it relates to their respective attendances.
11. That within 7 days of completion the father provide to the solicitors for the mother certificate(s) evidencing his completion of the refresher/follow up courses of the anger management courses conducted by Veteran Affairs.
12. That the order for appointment of the Independent Children’s Lawyer be forthwith discharged.
13. That all extant applications be otherwise dismissed.
14. 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 the 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.
15. Certify for advocacy for each party.
AND THE COURT NOTES:
A. That the father and mother intend to act in a civil manner each to the other upon any changeover for the father’s “time spent” with [the child] so as to take into account his best interests; and
B. That the father intends to take leave from his work to be available to care for [the child] during holiday periods and particularly the periods referred to in sub-paragraphs 3(b)(iv) and 3(c)(iv) and (v) of these orders.
In an affidavit sworn by the Mother on 25 August 2009 she contended at paragraph 3 that the parents “made efforts to ensure that each of [them] adhered to the Orders thereby allowing the child to spend time with the father as was agreed”. However, the Mother also contended at paragraph 5 that “[s]ince the Orders were made [she has] had many issues with regard to the child settling into a routine that involves him spending time with the father. I anticipated that there would be some issues with the child adopting the new arrangements and as such I have made efforts to ensure that the child is able to cope with these changes”.
The affidavit of the Mother was not in evidence before the Federal Magistrate. However, it was included in the appeal book and it was agreed that it should be before me. The Mother contended that the Federal Magistrate wrongly refused to read the affidavit.
The Mother gave evidence at paragraph 7 of her affidavit that on 18 July 2009 the child came home after his time with the Father and complained about being sore around the mouth and head. The Mother contended that she “tried to discover from the child what had occurred and after a little while the child said that the father had hit him”.
The Mother gave evidence at paragraph 8 of her affidavit that she “took the child to see [her] next door neighbour [Ms M] who is an anesthetist at [a Melbourne] hospital” who “checked the child over” and gave certain advice to the Mother.
The Mother contended that “there was not much that [she] could do other than see a lawyer” and made an appointment to see Mr Roubos at MW Law at Mitcham. On 23 July 2009 the Mother had a conference with Mr Roubos. The Mother contended at paragraph 9 of her affidavit that “Mr Roubos indicated that there was a lack of hard evidence available that all that we could do at this point in time would be to notify the father of our concerns and to continue monitoring the situation and try to ascertain exactly what had occurred that lead to the child making such a complaint and allegations”.
The next scheduled time that the Father was to have with the child was on 24 July 2009. The Mother contended at paragraph 10 of her affidavit:
This was a Friday and the child had not gone to childcare (as he normally does) due to the fact that he was suffering from a cold or flu. The child had been sick since the previous Wednesday and I had left a message on the father's phone on that Friday morning to indicate that the child was sick and he would not be at the childcare centre. The father called me back at 2.00pm on Friday. I told him that the child and I would be at home and that the child was sleeping and had not woken up since lunchtime.
The Mother said at paragraph 11 of her affidavit that she had taken the child to her next door neighbour to check him over because her children had also suffered from the flu and she indicated that there was not much she could do other than administer Panadol every four hours. The Mother contended that she did as instructed and the child was stable at that point in time.
The Mother gave evidence at paragraph 12 of her affidavit about what happened when the Father arrived at her home on 24 July 2009 to collect the child. I am not going to repeat all of what she said. In summary, the Mother contended that the Father insisted that he take the child, which he did. The Mother advised the Father to administer Panadol every four hours and “he acknowledged that the child required medication and that he was not well and that he had been vomiting that day”. The Mother also gave evidence at paragraphs 13 and 14 about when the Father returned the child.
The Mother gave evidence at paragraphs 15 and 16 of her affidavit about what happened on 31 July 2009 when the Father spent time with the child. The Mother said:
There was a slight bruise under the child's chin on his jawbone n [sic] the right and what look like a large welt. He was marked and a few days later the bruising really came out. I contacted the childcare centre to see if there had been an incident at childcare on the Friday and they indicated that there was no incident reported in the book and that they felt that the child had not hurt himself whilst in their care. . After the father left I went inside to inspect the child and asked him how he fell over and hit his face. As my mother and I were inspecting the child he disclosed to us that "dadda hit me". When we asked why daddy had hit him he said because I wouldn't go to sleep.
The Mother contended at paragraph 17 of her affidavit that she again took the child to see her neighbour, whose husband was also present, to receive advice as to what she should do next. The Mother contended: “They both indicated that it was inappropriate that I do not acknowledge that there is a serious threat to my child's safety and that I should make the necessary notifications to the relevant authorities. They indicated that the best course of action would be to begin by reporting this matter to a Health Care professional and then to the Police”. The husband of the next door neighbour is a former police officer.
On 3 August 2009 the Mother took the child to see Dr D who “checked the child over and made notes of the bruising that he found”.
On 3 August 2009 the Mother reported the matter to the police. The Mother gave evidence at paragraph 19 of her affidavit that she spoke to a police officer Ms J who gave her the details of the SOCAH Unit [Sexual Offences & Child Abuse Unit (SOHA)].
The Mother contended at paragraph 19 of her affidavit that on 4 August 2009 “the matter was referred to the SOCAH Unit and the police took down [her] report and they interviewed the child”. The Mother also said: “The police ascertained that the child was too young for them to be able to gather enough evidence that would result in the laying of charges. The police then called Dr [D] who was then told to call the Department of Human Services”.
The Mother contended at paragraph 20 of her affidavit that after the assessment of the child was made by the police she was advised that she needed to take further action and that she should be making an application to the Family Court as soon as possible. The Mother contended that when she requested advice as to how to best deal with the matter she was told that the child could possibly be in danger of having further physical harm and, as such, the Mother would need to make a decision that would prevent the child from being further exposed to violence. The Mother contended: “During the police interview the child re-stated what he had said to me, ‘dada hit me’ ”.
The Mother contended at paragraph 21 of her affidavit: “The Department of Human Services called me on Friday the 7th of August 2009 at around 4.30pm when I was collecting the child from the childcare centre. I indicated to them that I was in the middle of placing the child in the car and that I would be happy to receive a call from them at some later time when it would be more appropriate for me to talk, without the child present. They said that they would call me back but to date I have not heard back from them”.
In his reasons, the Federal Magistrate stated at [2] that the Father alleged that on 7 August 2009 the Mother “turned up” earlier than the Father at the childcare centre and removed the child. Thus, the Mother “without reasonable excuse, failed to present the child for collection…”. The Mother denied that she breached the orders on the basis that she “had a reasonable excuse for refusing the father’s time with the child on that day”. The Federal Magistrate also noted at [3] that the Father had not spent any time from that day until the hearing of the contravention application.
The Mother contended at paragraph 22 of her affidavit that at the request of her lawyer she made an appointment to see Ms S, psychologist.
On 9 August 2009 the Mother consulted with Ms S for three hours. The Mother contended at paragraph 22 of her affidavit that she asked Ms S to assess the situation as best she could and to find out whether or not the Mother’s concerns were such that would warrant her preventing the Father from spending time with the child. The Mother contended that when she went to see Ms S she provided her with copies of the current orders and a Family Report by Mr T and a report by Dr E, psychiatrist. The Mother contended that Ms S’s report confirmed what her suspicions were and galvanized her intentions to have this matter investigated.
The Mother contended at paragraph 23 of her affidavit that her lawyer had contacted the Father via letter indicating to him that there were some serious concerns that the child was being hurt whilst in his care and that the Mother would be seeing Ms S to assess the situation and to receive further advice. The Father's solicitor then wrote to the Mother’s solicitor indicating that her explanation for preventing the Father from spending time with the child was unacceptable and that the Father wanted to see the child. The Mother contended that she was in a vexed situation where she was afraid of receiving a reprimand from the court for breaching the orders but at the same time she was told by both the police and Ms S that the child had in fact been involved in some kind of situation that involved violence towards him and it would be unconscionable for her to not take the necessary precautionary steps to insure the child's safety. The Mother said that as a compromise she offered the Father the option of supervised time until the report was made available.
In her affidavit the Mother then said:
24. As I have indicated there are certain issues that have transpired since the beginning of these Orders that have always caused me great concern. These issues are as follows:
(a)The child is returned to me always smelling of strong cigarette smoke which leads me to believe that the father is smoking in the vehicle whilst he is delivering the child to me.
(b)That the child is not provided with a change of clothes after he is collected from the childcare centre and I feel that the father is not adequately able to care for the child whilst he is in his care with regard to this
(c)The child is now afraid of the childcare centre because he equates the childcare centre with the father collecting him. As a consequence myself and the childcare workers have enormous trouble in persuading the child to stay at the childcare centre. The discussions that we have had with the child indicate that he feels that daddy will come and take him and that daddy will then hurt him.
(d)The child has on at least two separate occasions acted out by hitting both myself and my mother. He has struck my mother on the face and told her this is what daddy does to him. We feel that this kind of role playing is monkey see monkey do and that the child is definitely subjected to or exposed to some form of violence whilst in the care of the father.
25. All of the abovementioned points are ones that require urgent investigation by this Honourable Court to ascertain whether or not the child is placed in a position where he may be exposed to further violence. Given the father's previous predisposition to violence towards me and his addiction to illicit drugs. [Ms S] indicates in her documentation the shortfalls of both the Family Report and the Psychiatric evaluation that was performed on myself. Therefore I wish to have this matter re-opened in an effort to further explore the questions that [Ms S] has raised in her report with regard to the Family Report and the Psychiatric evaluation on myself. Especially on the issues regarding the father's drug screens.
26. In light of this recent further information and the physical injuries that the child has sustained it will be necessary for this matter to be re-visited with a view to seeing what the appropriate safety measures would be implemented to ensure that the child is not placed in a position where he is subject to further abuse.
On 11 August 2009 an application was filed by the Father in which he contended that the Mother contravened order 3(b)(i) of 20 May 2009 in that at about 4.00pm on 7 August 2009 the Mother removed the child from the Pre-School and Child Care Centre thereby “preventing [the Father] from collecting the child at 4.30pm”. In support the application the Father affirmed a short affidavit on 10 August 2008. The return date of the application was 25 August 2009.
On 12 August 2009 Ms S saw the Mother for one hour with the child.
Ms S provided a report dated 18 August 2009. In the report Ms S said that the purpose of the report was “to summarise [the Mother’s] allegations and submit recommendations after reviewing the documents. It is not the intentions of this letter to offer an overview of previous assessments undertaken by both parties. I have not interviewed [the Father]”.
In her report Ms S said the Mother “forwarded many allegations about the conduct of [the Father]” and she provided particulars of the information she received.
In relation to the interview with the child, at paragraph 29 of the report, Ms S provided some background to interviewing the young child and said that it was “entirely impossible for [her] to ascertain how [the child] received the bruising on his head and jaw. It could have been received whilst playing, poor supervision or pushing by someone whilst under the care of [the Father].”
Ms S also said a paragraph 31 of the report that it was not the purpose of her report to review reports from Dr E and Mr T.
At paragraph 32 of her report Ms S said that against the background of seeming non-compliance by the Father and allegations of physical violence perpetrated against the Mother “it is not unreasonable to conclude that [the Mother] has a heightened awareness and indeed vulnerability to [the Father’s] behaviour. Bruising evidenced on [the child] upon his return from [the Father] would likely insight a very hostile and anxious reaction”.
I do not propose to set out in these reasons all of the recommendations made by Ms S, however, I will make a number of observations:
·Ms S said that the Mother made it quite clear that she wishes the Father to have a continuing and ongoing relationship with the child. However, “whilst in the care of [the Father], [the Mother] needs to be assured that [the child] is physically safe and is not at any risk”.
·Ms S said that she “would be confident that [the Father] would be highly motivated to ensure that measures are put in place to allow positive relationship to develop with [the child], with both parents to the development of the child, free of continued legal intervention”.
·Ms S said that given the scarcity of documents available to Mr T, she would strongly recommend “another parenting plan be undertaken by a psychologist who specifically has graduate qualifications in child/ developmental psychology”.
·Ms S also said “it is highly recommended that an independent supervisor be appointed during contact”.
The Father contended that the Federal Magistrate correctly ruled that the report of Ms S was in breach of s 102A of the Family Law Act 1975 (Cth) (“the Act”). It was submitted by the Father that counsel for the Mother made no submission and did not dispute that the report was in breach of that section. It was submitted that the Federal Magistrate was correct in regarding a breach by Ms S of s 102A as a serious matter and any comments made by the Federal Magistrate were directed at Ms S in her professional capacity and not the Mother.
Section 102A of the Act provides that:
(1) Subject to this section, where a child is examined without the leave of the court, the evidence resulting from the examination which relates to the abuse of, or the risk of abuse of, the child is not admissible in proceedings under this Act.
(2) Where a person causes a child to be examined for the purpose of deciding:
(a) to bring proceedings under this Act involving an allegation that the child has been abused or is at risk of being abused; or
(b) to make an allegation in proceedings under this Act that the child has been abused or is at risk of being abused;
subsection (1) does not apply in relation to evidence resulting from the first examination which the person caused the child to undergo.
(3) In considering whether to give leave for a child to be examined, the court must have regard to the following matters:
(a) whether the proposed examination is likely to provide relevant information that is unlikely to be obtained otherwise;
(b) the qualifications of the person who proposes to conduct the examination to conduct that examination;
(c) whether any distress likely to be caused to the child by the examination will be outweighed by the value of the information that might be obtained from the examination;
(d) any distress already caused to the child by any previous examination associated with the proceedings or with related proceedings;
(e) any other matter that the court thinks is relevant.
(4) In proceedings under this Act, a court may admit evidence which is otherwise inadmissible under this section where it is satisfied that:
(a) the evidence relates to relevant matters on which the evidence already before the court is inadequate; and
(b) the court will not be able to determine the proceedings properly unless the evidence is admitted; and
(c) the welfare of the child concerned is likely to be served by the admission of the evidence.
(5) In this section:
examined, in relation to a child, means:
(a) subjected to a medical procedure; or
(b) examined or assessed by a psychiatrist or psychologist (other than by a family counsellor or family consultant).
Note: Section 69ZV is relevant to evidence of a representation by a child, if the admissibility of the evidence would otherwise be affected by the law against hearsay.
In my view, what Ms S did was not in breach of s 102A of the Act as the prohibition is on the use of the evidence obtained. In other words, as the legislation clearly states, where a child is examined without the leave of the court, the evidence resulting from the examination which relates to the abuse of, or the risk of abuse of the child, is not admissible in proceedings under the Act. The Mother may have required leave to rely upon the report when she sought to put her case but this opportunity was never afforded to her. If the Mother had made an application then, as the report of Ms S makes very clear, s 102A(4)(b) would be relevant. The report was clearly relevant to the contention of the Mother that she had a reasonable excuse.
On 25 August 2009 the Mother filed an application in which she is seeking final and interim parenting orders. The Mother is seeking that all previous parenting orders be discharged. On 25 August 2009 the Mother affirmed an affidavit to which is attached a copy of the report dated 18 August 2009 from Ms S. I observe that the report of Ms S would probably also be admissible by reason of s 102A(2)(a) of the Act.
Hearing before the Federal Magistrate
On 25 August 2009, being the first return date of the application, the matter came before the Federal Magistrate. Given the nature of the complaints made by the Mother about the conduct of the hearing before the Federal Magistrate I propose to take the unusual course of setting out significant parts of the transcript. What the Mother contends requires careful consideration of what happened and what was said during the hearing.
When the matter first came before the Federal Magistrate on 25 August 2009 the following exchange took place between the Federal Magistrate and counsel for the Father (Transcript, 25 August 2009, p 2):
HIS HONOUR: Okay. Just bear with me, Mr Arnold. Has there been any compliance with the time with orders?
MR ARNOLD: Up until the first weekend of August, yes.
HIS HONOUR: What about subsequently? What is the situation?
MR ARNOLD: There’s been no time since the start of August.
HIS HONOUR: Okay. All right.
The Mother complains that the Federal Magistrate should not have made the inquiry about whether or not the Father was spending time with the child at other times.
Counsel for the Father then said (Transcript, 25 August 2009, p 2):
MR ARNOLD: The mother served an unsworn affidavit, which discloses that she alleges my client hit the child, or the child has disclosed that my client has hit him on the chin. My client says that on the return on the previous contact visit he advised the mother that the child had fallen over and bruised his chin or hurt his chin. She then takes the child to the next door neighbour, who is a doctor, and she then on the Monday morning takes the child to another doctor. She then takes the child to SOCA, she then notifies the department, and if that’s not enough she then takes the child off to a private psychologist who she’s now seeking to file a report from.
Counsel was referring to the affidavit of the Mother of 25 August 2009 and was discussing with the Federal Magistrate the merits of the Mother’s case.
HIS HONOUR: Now, on the assumption, and it’s only an assumption that your client is successful in proving the breach, what remedy does he seek?
MR ARNOLD: He sakes [sic] make up time and it will be effectively a slap over the wrist parenting course.
There was a brief exchange at about 10:16am during which the following was said (Transcript, 25 August 2009, p 3):
HIS HONOUR: Yes. Look, I might just stand down while you – and just read the material. There’s not much to do. (emphasis added)
MR ARNOLD: There’s only a one pager from my client effectively.
It was submitted by the Mother that the Federal Magistrate stated during the course of the hearing that he proposed to read material, relied upon by the Father in support of the contravention application, without identifying such material.
The hearing then resumed at 11:35am and after counsel for the Father identified the relevant application and affidavit of the Father there was the following exchange (Transcript, 25 August 2009, p 4):
HIS HONOUR: Okay. Just bear with me, Mr Arnold. I’ll have a quick read of those documents. Thank you. Was there access on 14 August, Mr Arnold?
MR ARNOLD: No.
HIS HONOUR: Okay, thank you.
Again, the Mother complains that this should not have occurred.
Then the following discussion took place (Transcript, 25 August 20009, pp 5 to 11):
MR ARNOLD: I’ve just asked my learned friend how many witnesses he had, and I’d presume it was just going to be his client, she’s, as you’re aware, got the right to silence, but he’s indicating that he’s got a number of professional witnesses including a doctor and a police officer and wants to call some by telephone, and I’m – there’s no adjournment application, and it is an incredibly unusual way to proceed in a contravention. If – you’ll appreciate my client has put his case to the court, and as far as I’m aware, the mother is not alleging that the breach didn’t occur, it’s whether there was a reasonable excuse for the breach. If that’s the case and she’s relying upon other witnesses, then they should be on affidavit.
HIS HONOUR: Yes, thank you. Mr Roubus, what witnesses do you propose calling, Mr Roubus?
MR ROUBUS: Your Honour, I do have a signed affidavit by the mother, and part of that affidavit has an annexure that includes a report by [Ms S] who is a psychologist that’s been assisting with this matter.
HIS HONOUR: Can I say at the outset, I’m yet to be persuaded at the outset that first blush, I’m absolutely staggered that a two year old child is being subjected to the intrusion of a psychologist for a purpose I just – I’m lost at this stage to understand why it all happened. I’m just staggered. I get worried about psychologists being involved in older children, let alone two year olds.
MR ROUBUS: Your Honour, the involvement of this psychologist was not in relation to the child per se, but it was in relation to the mother and the existence of a family report by [Mr T] and a psychiatric evaluation by [Dr E]. The situation that occurred was that the mother came to see me, voiced her concerns about the situation that had occurred, I told her that we need to err on the side of caution and I recommended that this third party assess the mother more so – it wasn’t to assess the child but to assess the mother’s situation and to allow for some – it was just a difficult situation.
HIS HONOUR: Different understanding than what I got when I went through ---
MR ROUBUS: Your Honour, if I may be allowed to submit the mother’s affidavit, my learned friend and his instructor received an unsigned copy yesterday. Unfortunately time has – we’ve had very limited time to prepare a lot of this material. Mr Salamanca was briefed for this matter and the first conference that we had with counsel was on last Thursday on the 20th. Your Honour, Mr Salamanca was unable to appear today because he had another matter that ran longer than was anticipated. As such, your Honour, there has been this delay with the material being forwarded and lodged with the court, but I do have an application ready and the supporting affidavit and the affidavit in support pretty much covers the issues with regard to the mother’s reasons as to why this has occurred in relation to the contravention.
HIS HONOUR: What’s the psychologist’s name?
MR ROUBUS: [Ms S], she’s in court today, your Honour, she’s seated at the back of the court. Your Honour, it was ---
HIS HONOUR: Who else did you intend to call?
MR ROUBUS: Well, for today, your Honour, I have [Ms S], my clients, [Ms Jets] and her mother, [Ms P Jets], who is also in court today. I do have available, your Honour, the next door neighbour, who is a former police officer and a former person of the armed forces, just a small background. The next door neighbour and his wife, who’s an anaesthetist at [a Melbourne] hospital, have been involved with my clients, approaching them and discussing these issues and having them look at the child and what have you. So they have been quite pivotal in helping advise her, as to her next best course of action. I do have the neighbour, who is [Mr M], as I said, a former police officer, available via telephone. He did say his wife may also be available, but
HIS HONOUR: What are they all going to tell me? That – what are they going to tell me? Are they going to tell me that she said she’s anxious about this and they’re going to say, “Well, in my view you’re justified?”
MR ROUBUS: No, your Honour.
HIS HONOUR: What are they going to tell me?
MR ROUBUS: They’re basically – the evidence that they will give is that the child has sustained injuries. That’s the issue here. The physical injuries that
HIS HONOUR: But very pertinently the – and really very pertinently the letter in response by the father’s solicitors, point out that the allegation, particularly about the concussion, all predates consent orders being made.
MR ROUBUS: They’re the previous; these are fresh allegations since the orders were made, your Honour. There are two fresh incidents.
HIS HONOUR: Well, they are not included in the letter sent directly to the father and kids get hurt. Kids have injuries. They get bruises. They fall over. They hit perhaps their chins on Thomas the Tank Engine or whatever. That sort of thing happens. We can’t keep them in cotton wool. What are these other witnesses going to tell me, that would show somehow or other that the injuries that the child has suffered is something other than what would be normally expected of any child – active child to suffer in running around the household and just being a child? What is it they are going to tell me?
MR ROUBUS: Well, your Honour, the difficulty is the age of the child and because of the age of the child, we are unable to determine exactly what happened through the eyes of the child. Therefore, we have to ---
HIS HONOUR: You have a photograph of the injury that’s complained of?
MR ROUBUS: Yes, I do, your Honour, and that’s also attached to the affidavit material that I intend to submit.
MR ARNOLD: I’ll help you out, your Honour. Whilst I was initially going to object to [Ms S]’s report, given that it is so in breach of section 102A of the Act, that it doesn’t matter, given that the mother’s on the July chin date, I’ll call it, taken the child next door to a doctor and a police officer – or a former police officer, then taken the child on the Monday to a doctor, then taken the child on Tuesday to the police and to SOCA, reported the matter to---
HIS HONOUR: SOCA?
MR ARNOLD: Yes. I would like to see the tape if there is a tape. The child was interviewed.
HIS HONOUR: The child what?
MR ARNOLD: Was interviewed.
HIS HONOUR: The two year old child was interviewed?
MR ARNOLD: The two year old child was interviewed, then has reported the matter to the department. Mind, I don’t think she’s returned their call. Then, we get to the psychologist. So it’s so in breach of the section 102A, that it doesn’t matter, but, in any event, this is the summary of what the psychologist says and this is after seeing the child for an hour. She had a conference with the mother and child for an hour. She says:
It is entirely impossible for me to ascertain how [the child] received the bruising to his head and jaw. It could have been received whilst playing, poor supervision or pushing by someone whilst under the care of [the Father].
That’s the sum---
HIS HONOUR: What’s so serious about this injury? I mean---
MR ARNOLD: Well, I think---
HIS HONOUR: Well, Mr Roubus, what’s so serious---
MR ARNOLD: ---my client is alleged to have hit the child.
MR ROUBUS: Your Honour---
HIS HONOUR: ---did it require hospitalisation, did it – is it anything other than a graze or a bruise to the chin?
MR ROUBUS: Your Honour, the issue is that the mother has had concerns from the onset with regard to the father’s capacity to care for the child and these injuries---
HIS HONOUR: Well, that’s an issue that might reflect more on her than anything else.
MR ROUBUS: On her, your Honour?
HIS HONOUR: Yes.
MR ROUBUS: How is that so, your Honour, if the child is injured whilst he’s away from her?
HIS HONOUR: She’s agreed to consent orders being made, when she has these concerns.
MR ROUBUS: Your Honour, it was only ---
HIS HONOUR: She fixes on what might appear to be a minor injury, to justify a breach of consent orders. Serious matters. It’s getting onto the serious matters. A serious breach – well, I don’t put it that highly, but it’s becoming very significant.
MR ROUBUS: Your Honour, and rightly so, and she – initially when she came to see me with her concerns, I did advise her that we would write to the father and then that she should just monitor the situation and consult a third party to assist her in dealing with this situation, especially in light of the two reports that I’d seen and she did that, your Honour, and there was this ---
HIS HONOUR: You’re right, assist her.
MR ROUBUS: There was a second incident, which led to what’s occurred now.
HIS HONOUR: So-called second incident.
MR ROUBUS: That’s the July chin incident, your Honour. That’s a second incident and, your Honour ---
HIS HONOUR: Well, there must have been a significant incident.
MR ROUBUS: Well, your Honour, when you have a small child that’s coming home---
HIS HONOUR: Can I have a look at the photograph; just have a quick look at the photograph? Mr Roubus, I’m trying to contain my anger about all of this. You can go to the most perfect parent in the world and you would find a bruise of that nature on one of their children at some stage or other, through no neglect or fault of the parent. All this build up of calling in all these witnesses, to me rings a lot of alarm bells, all trying to justify a position that on the face of it looks unjustifiable. What, in God’s name, can [Ms S] do to assist me in this case, apart from giving some moral support or some building up of a case on a house of cards, to support the mother?
MR ROUBUS: Your Honour ---
HIS HONOUR: It just staggers me that this could be happening.
MR ROUBUS: Your Honour, [Ms S]’s assistance in this matter is to basically decipher what’s occurred in the past, with regard to---
HIS HONOUR: The past is the past. She made consent orders.
MR ROUBUS: That is correct, your Honour, but, your Honour---
HIS HONOUR: Based upon expert opinions of [Mr T] and [Dr E].
MR ROUBUS: That is what [Ms S]’s professional opinion was with regard to those two ‑ ‑ ‑
HIS HONOUR: Well, believe me, I don’t know what her qualifications are, but she’s a psychologist, I won’t be listening to her in preference to anything [Dr E] might have assessed.
MR ROUBUS: Your Honour, she’s extremely qualified in ---
HIS HONOUR: She doesn’t beat [Dr E], a man of high regard in this court.
MR ROUBUS: Your Honour, the situation is not one where we’re trying to criticise [Dr E] or [Mr T]. What we’re trying to do is to show if there is a possibility that this child is exposed to any situation that is causing him harm.
HIS HONOUR: Every child is exposed to risk of injury.
MR ROUBUS: Your Honour, the father’s history and the issues that he has faced in the past and the way that they were dealt with ---
HIS HONOUR: [Ms S], even in her summary as read to me, says that it could have happened in play or whatever.
MR ROUBUS: Your Honour, this is why the initial letter to [the Father] indicated exactly that, because we do not know exactly what happened to the child. There is a situation where the child is coming back hurt.
HIS HONOUR: Well, he’s given an explanation, why don’t you accept it?
MR ROUBUS: Because, your Honour, the child is acting out in certain ways, given the age of the child, in certain ways and the information that the mother has received from the childcare people that are spending time with the child, that there is something potentially wrong with this situation and the mother is ---
HIS HONOUR: Acting out in certain ways, what are you talking about?
MR ROUBUS: Well, the child hits both the mother and the grandmother and says this is what daddy does to him. These are the type of situations where they don’t want to jump to conclusions, but unfortunately there has been a number of incidents, which have led to what’s occurred now and the mother has just tried to err on the side of caution based on what other professionals have told her.
HIS HONOUR: Okay. Now, listen, you’ve got all these witnesses you wish to call. Are you asking for an adjournment so you can put them on affidavit and then have them called properly?
MR ROUBUS: Yes, your Honour.
HIS HONOUR: What do you say to that?
MR ARNOLD: I’d probably have to get instructions, but thinking on my feet, sir, that the mother was served on 12 August. She should have had this done by now. She’s had time since 12 August to spend so much time with the psychologist; she’s spent so much time with Mr Salamanca – my instructor – my learned friend, she spent time with and yet she hasn’t got her next door neighbour to swear an affidavit. It’s totally inadequate, totally inadequate. In the meantime, she’s going to be denying my client time with the child presumably, even after she’d received a report saying it is impossible to determine how these injuries occurred and the time should be being spent. An adjournment can be rectified in relation to costs, there’s no question of that, as long as the adjournment is of short duration and time recommences. Otherwise the mother shouldn’t be allowed to rely upon any other witness that’s not on affidavit.
HIS HONOUR: All right. I’m going to stand down for 15 minutes. The adjournment is refused because they haven’t been prepared properly. I’m not prepared to listen to anybody who is not on affidavit, said to be an expert witness. On the face of the material I’ve seen so far, you know, the nature of the injury – the sort of things we normally get or the sort of injuries we get are significant. Just on the photographs alone, this injury is just minor and consistent with what children suffer in just the normal everyday living experiences.
MR ARNOLD: I’ll indicate, sir, my client will say that the child was running away from him and fell over and knocked his chin on his Thomas the Tank Engine chair.
HIS HONOUR: Okay. Well, I’m going to start at 12.15. Okay. We’ll stand down for the time being.
The hearing was then adjourned at 12:01pm.
There are a number of complaints by the Mother about what happened. It was submitted by the Mother that the Federal Magistrate refused to permit or actively discouraged the Mother from calling witnesses in support of her case in meeting the application for contravention of orders.
It was submitted by the Mother that the Federal Magistrate refused three applications made on behalf of the Mother to adjourn the proceedings, in order to comply with the Federal Magistrate's statements that the Mother was required to have her witnesses on affidavit.
The hearing then resumed at 12:22pm. When the hearing resumed the following occurred (Transcript, 25 August 2009, pp 11 to 15):
HIS HONOUR: Has [sic] [Jets] come forward? Where are they?
MR ARNOLD: I’ll have to go get them again, your Honour.
HIS HONOUR: [Ms Jets], if you’d come, please, to the end of the table. Thank you. What I’m about to do is put the allegation to you. You are able – you are invited to respond – it’s a bit like a guilty or not guilty plea, but respond with admitted or not admitted. If you admit the allegation, then you admit it. If you don’t admit it, you do so on the grounds that you have a reasonable excuse. Okay? If you have a reasonable excuse, you can say it’s not admitted. Okay? Now would you be good enough to stand at the end of the table, thank you. [Ms Jets], it’s alleged that you, on 7 August 2009, without reasonable excuse failed to provide [the child] to spend time with his father pursuant to paragraph 3(b)(i) of the orders made in the Federal Magistrates Court on 20 May 2009. Do you admit that or deny that allegation?
MS JETS: I admit it.
HIS HONOUR: Well, I think you – when I say, if you think you have a reasonable excuse, that means you can – even though it happened but you’ve got a reasonable excuse, you can deny the allegation. Is that what you ---
MS JETS: Well, I breached the order because I feared for [the child]’s safety. As a mother, if I didn’t do that, I’d be negligent to the child.
HIS HONOUR: I’ll take that as a denial of the allegation. Okay. Take a seat behind your counsel. Thank you. Now, I’ve seen the affidavit and read it in support of the application. Do you wish to cross-examine [Mr Maker] at all, Mr Roubus?
MR ROUBUS: Your Honour, at this point in time I thought, if your Honour is not minded to have [Ms S]’s report admitted or [Ms S] give evidence today, then it would be – my instructions are that I request that the matter be adjourned to allow [Ms S] report to be put on affidavit and ---
HIS HONOUR: Well, what’s it going to do? There’s no point in that journey. What’s it going to do?
MR ROUBUS: Your Honour, with the greatest of respect, the report is pivotal in explaining exactly how this situation has transpired and why my client was placed in a position where she withheld the child from time spent with the father.
HIS HONOUR: Your client can tell me that. Why should a third party tell me what your client is thinking? I don’t understand. She herself says it doesn’t – well, expand? What is [Ms S] going to say? I mean, the fact that [Ms S] interviewed a two-year old child to me gives her very little credit, as a professional. It’s extraordinary, the history, that a qualified psychologist interviewed a two-year old child. It’s just not done. It’s in breach of the Act as well.
MR ROUBUS: She interviewed the mother, your Honour.
HIS HONOUR: No, you read out the – well, perhaps, Mr Arnold, you did say that the interview went with mother and child.
MR ROUBUS: The mother – the child ---
HIS HONOUR: Mr Arnold, you did say that before?
MR ARNOLD: The statement says:
On Monday, 12 August, I again saw [Ms Jets] for one hour with [the child].
MR ROUBUS: With the child.
HIS HONOUR: Yes. That’s extraordinary for a professional psychologist to do that. So what weight I’m going to give it is going to have to be pretty limited, whatever she says. Apparently she says nothing anyway but I ---
MR ROUBUS: Well, your Honour, that’s further from the truth, your Honour. She doesn’t say nothing, she illustrates the shortcomings of the previous reports and she indicates that there may be ---
HIS HONOUR: I beg your pardon? She is challenging [Mr T] and [Dr E].
MR ROUBUS: In certain aspects, yes, your Honour. Yes, your Honour.
HIS HONOUR: Well, that’s just – really, she interviews a two year old child and she is challenging two of the courts acknowledged experts that are held in high regard.
MR ROUBUS: Your Honour, it’s ---
HIS HONOUR: She is not going to carry much weight, Mr Roubus.
MR ROUBUS: Your Honour, it’s not a report on the child. It’s a report on [the Mother] and her capacity to deal with this situation and to ascertain whether or not her concerns are validated or if it is something that has been---
HIS HONOUR: How can her concerns be validated through this?
MR ROUBUS: Well, your Honour, it’s the existence of [Dr E]’s report and [Mr T]’s report that created the necessity to have a third party look at [the Mother] to see if what she was saying had any capacity of being credible because based on those previous reports, even my initial reading of it, I explained to my client that it would be very difficult---
HIS HONOUR: Now listen, Mr Roubus, people can form subjective views about and have anxieties about the welfare of children in the other party’s company but there has got to be some objective assessment as to whether those concerns are rational or justified.
MR ROUBUS: Exactly, your Honour.
HIS HONOUR: Her telling somebody about her concerns is not going to change that situation.
MR ROUBUS: No, your Honour, and, your Honour, [Ms S]’s report illustrates fundamental flaws that have occurred in both the other reports and how they were structured and how they dealt with the situation. Both reports, your Honour, were lacking in certain areas and given the fact that ---
HIS HONOUR: Well, when you say certain – what do you mean by lacking in certain areas?
MR ROUBUS: Well, your Honour, for example – your Honour, it’s probably best, your Honour, as I said my learned friend has seen the report, [Ms S] is here, if I was to tender the report, your Honour, and if you would spend just a couple of minutes to go over it, it may help in assisting with the line of argument that I do have in relation to this matter. It is a separate matter, your Honour. It’s not part of the contravention per se. This is something that ---
HIS HONOUR: Well, this is all about a contravention hearing. Your client is saying she has got a reasonable excuse.
MR ROUBUS: Yes, your Honour.
HIS HONOUR: Your client is saying her reasonable excuse is her understanding that the child’s welfare is at risk if in the care of the father. There’s evidence of that. There is a photograph of a bruise caused to the child whilst in the care of the father. Ipso facto your client concludes that the child should never see the father again, without supervision I presume. Where does [Ms S] fit into that picture?
MR ROUBUS: Well, your Honour, it’s – [Ms S] goes to show the probative value of what the mother has to say in terms of – in light of the previous reports that have---
HIS HONOUR: Well, your client might have a genuine belief about all of these things but the question for me is whether objectively that belief is rational, is a reasonable excuse or whether it is something else. I don’t know how [Ms S] is going to help me there. By saying, “I spoke to her and she seemed genuine to me and she has recited a number of incidences that have occurred that has raised her anxieties” and based upon that, then her – in the mother’s mind – behaviour and denying time with the father is a rational one. Is that what she says, in effect?
MR ROUBUS: Well---
HIS HONOUR: I haven’t read it but I am guessing what she says.
MR ROUBUS: Well, your Honour, in effect, what she is saying is, that because of the child’s age, we need to look at the history of the parties and to focus on significant predisposing variables and significant risk factors that exist between the parties to assess whether or not the current allegations have any reason for concern with regard to this matter being further investigated.
HIS HONOUR: That’s not for her to judge, it’s for me to judge.
MR ROUBUS: That is correct, your Honour. This is ---
HIS HONOUR: Well, she is not going to help me at all. I will be making my own assessments of that based upon the evidence I hear about the circumstances and, as I said, somebody interviews a two year old child, who professes to be a psychologist and then it goes one step further and says, her views of things are so much better than acknowledged experts and ones that are held in high regard in this court, namely, [Dr E] and [Mr T] are somehow wrong. You are really struggling I think, Mr Roubus.
MR ROUBUS: Well, your Honour, with all due respect, without actually reading [Ms S]’s report and seeing whether or not there are any shortfalls or shortcomings---
HIS HONOUR: So far you haven’t – I have been inviting you to persuade me as to why I should listen to it. I haven’t heard anything yet that says, “That’s very significant.” I haven’t heard – I have been inviting you to tell me but you haven’t responded with anything that’s persuasive in that regard.
MR ROUBUS: Well, your Honour, it does point to certain situations that occurred previous to this that led ---
HIS HONOUR: Well, the difficulty there is – and it’s a very substantial difficulty – consent orders were made in this court on 20 May 2009 and if those previous incidences relate to a time before 20 May, the question then is, well, if it was so bad then, why did you agree to consent to these orders?
MR ROUBUS: And the report sets out some of the reasons behind that, because of the mother’s ongoing psychological and physical abuse which has led to a condition which would make her unable to adequately make those – she comes across in the reports as someone who is indicative and reacts exactly as if someone who has been through such a trauma as a mother has and this is where ---
HIS HONOUR: Do we also – you say that that shows up in her response to a slight bruise to the chin?
MR ROUBUS: Well, your Honour, it’s coupled with what the child said to her. It’s not just a slight bruise to the chin. She can only go on the information that she is given by the child and by the father and someone who has been subjected to a long history of violence from the father would have no reason to doubt what her son is telling her and this is what has led to this contravention.
HIS HONOUR: Okay. You are not getting any adjournment, I already indicated that already. We will proceed with the hearing. Do you wish to cross-examine [the Father]?
MR ROUBUS: Yes, your Honour.
HIS HONOUR: Okay, call [the Father] then, thank you.
The Father then gave evidence in chief and what I observe is that he gave no evidence in relation to the contravention, as that was clear from his affidavit, but gave evidence in relation to the issues raised by the Mother in her affidavit of 25 August 2009 which the Federal Magistrate had not accepted into evidence (Transcript, 25 August 2009, pp 15 to 17). The Federal Magistrate, at this stage, had no evidence from the Mother and yet he allowed the Father to give evidence about what the Mother had foreshadowed in her affidavit.
It was submitted by the Mother that the Federal Magistrate permitted counsel for the Father, in support of the contravention application to adduce viva voce evidence from the Father, in circumstances where leave was not sought.
The Father was then cross-examined by the solicitor for the Mother (Transcript, 25 August 2009, pp 17-20). I observe that during the cross-examination the Federal Magistrate also asked questions of the Father (Transcript, 25 August 2009, p 20):
HIS HONOUR: Do you understand [Ms Jets] to be anxious about the welfare issues concerning [the child]?‑‑‑I think, yes, she is anxious about it, yes. We both are.
Do you think that there is any need for you to give a full and detailed explanation of what might happen – have happened to [the child] whilst in your care to her?‑‑‑Yes, I believe I should tell her if something has happened, yes.
Have you done that?‑‑‑Yes, we have. Well, there was a communication which I haven’t had returned, so, that was used for it initially but ---
Okay, well, Mr Roubus, I gather you’re going to ask the next question that – well, put an allegation to him about that.
MR ROUBUS: Yes, your Honour.
[Mr Maker], did you strike your child, causing injury, on 27 July 2009 – or during the time that the child was in your care, during that time:
HIS HONOUR: Well, I think the evidence so far is he wasn’t in his care on 27 July, 26th was the return date. But on that Panadol weekend, if we can describe it as that, is that the weekend you’re talking of?
MR ROUBUS: On the Panadol weekend, from 24 July.
HIS HONOUR: Yes. The allegation is that you struck your child. What do you say to that?‑‑‑I didn’t.
MR ROUBUS: No. Did you strike your child or allow someone else to hurt your child whilst he was in your care, on the previous occasion on 18 July?‑‑‑No.
No further questions, your Honour.
MR ARNOLD: No re‑examination, your Honour.
The Mother then gave evidence in chief (Transcript, 25 August 2009, pp 21 to 24) and at one point the following exchange occurred:
MR ROUBUS: Then – we’ve heard in the discussions that you went to see [Ms S]. Why did you go to see [Ms S] and what did you do there?‑‑‑I went to see [Ms S], because of my concerns about [the child] and the welfare of [the child] and his safety. I went to [Ms S] because when the psychologist and the psychiatrist interviewed I had been traumatised and I wasn’t in the right mindset when they did those interviews. I hadn’t had counselling for the violence. I – basically I went to see her – basically I went to see her to see her opinion about how – why this had all happened. Because why I had two reports that were adverse against me and she said that when she walked out of the – into the waiting room, when she first saw me, she said, “You’re a victim” and she said that, “These reports are so adverse because you were in – you had been traumatised and they interviewed you when you weren’t – you weren’t in a state to be interviewed. You hadn’t been counselled.”
MR ARNOLD: Refrain from the psychologist’s opinion, your Honour, she’s not involved in this case.
HIS HONOUR: The more I hear of it – I’m told she’s in the audience, but it doesn’t reflect very well on her.
MR ROUBUS: Your Honour, it’s only the time that [the Mother] saw the psychologist was prior to the ---
HIS HONOUR: No, no, we’re talking about something else. Okay, listen, just focus on the issues that we’re here about, Mr Roubus.
MR ROUBUS: Yes, your Honour.
So you say that you stopped the child from seeing the father upon advice that you received from various people?‑‑‑Yes.
Those people were the police you said?‑‑‑Yes.
The doctor?‑‑‑Yes.
And the childcare situation?‑‑‑Well, the childcare was actually monitoring [the child] and was actually going to get a child psychologist in if it didn’t get any better. They were actually monitoring him.
Right. No further questions, your Honour.
HIS HONOUR: Thank you. Yes, thanks, Mr Arnold.
And the childcare situation?‑‑‑Well, the childcare was actually monitoring [the child] and was actually going to get a child psychologist in if it didn’t get any better. They were actually monitoring him.
Right. No further questions, your Honour.
HIS HONOUR: Thank you. Yes, thanks, Mr Arnold.
The Mother was then cross-examined (Transcript, 25 August 2009, pp 25 to 36). During the cross-examination of the Mother she gave evidence that the child told her that the Father had hit him. The Mother also gave evidence about difficulties with the child at childcare. At one point there was the following exchange (Transcript, 25 August 2009, p 27):
No. So you don’t know the reason why he might be acting out, do you?‑‑‑I have had psychologists – I’ve had advice by [Ms S], I have, and she did not ---
I’m not going to let you give that evidence, [Ms Jets]?‑‑‑Yes, okay.
You know that?‑‑‑Okay.
The Mother was also asked questions about what she said in her affidavit of 25 August 2009. The Mother was also asked questions about other witnesses (Transcript, 25 August 2009, p 29 to 30):
Have you approached the childcare workers to get them to give evidence?‑‑‑Yes, I have.
I’ve rung them and they said yes, I’ll do phone evidence.
There's no leave sought and I’ll certainly be opposing that. There's no mention, first up, your Honour, I must say about childcare workers, but I will deal with it.
HIS HONOUR: There was a mention of somebody giving phone evidence, I can’t recall who it was.
MR ROBUS: Your Honour, there was mention of further witnesses and your Honour indicated that if it wasn’t on affidavit it wouldn’t be suitable and you also ruled that we couldn’t have an adjournment to do so, so.
HIS HONOUR: That was principally in relation to [Ms S]…
The Mother then gave the following brief evidence in re-examination (Transcript, 25 August 2009, p 37):
MR ROUBUS: [Ms Jets], so you withheld your son from spending time with his father, because you had fears for his safety. Is that correct?‑‑‑Yes, I did.
That was based on what you saw?‑‑‑Yes.
What your son told you?‑‑‑Yes.
And what others advised you?‑‑‑Yes.
Up until that point did you have any – did you have any reason to not allow the father to spend time with the child?‑‑‑No, I had allowed it. I had – I wasn’t in breach up until then. Yes, I had allowed, but then these concerning issues came up and what am I supposed to do? If I don’t – if I don’t do anything about it and something happens to [the child], well, I’m the negligent mother and I had – I had no choice but to withhold contact.
The transcript reveals that at the conclusion of the oral examination of the Mother the hearing was then adjourned at 1:30pm (Transcript, 25 August 2009, p 37).
The Reasons of the Federal Magistrate
When the hearing resumed at 2:47pm the Federal Magistrate delivered extempore reasons for judgment.
In his reasons, the Federal Magistrate at [1] outlined the order alleged to have been breached. The Federal Magistrate at [4] outlined the Mother’s case for withholding the child from the Father and said that as he understood the Mother’s case she said that her action on 7 August 2009 “must be seen in a context”. The Federal Magistrate said that the “context” is the history of the relationship between the Father and the Mother which “is a relationship characterised by his violence to her”. The Federal Magistrate said that the Mother “alleges that the father is incapable of providing a safe environment for her son at such times as he may be with the father”. At [5] the Federal Magistrate said that although the Mother’s complaints “are longstanding” she nonetheless signed consent orders with the assistance of “well respected and very experienced counsel”. He observed that the Mother has since then sought advice from “new solicitors” and claimed the advice previously given to her “was inadequate and wrong”.
At [6] the Federal Magistrate stated that the Mother claimed a “number of instances … that gave her cause for concerns” since the consent orders of May 2009 and specifically one that occurred on 31 July 2009 when the child returned from the Father’s care with a bruise under his chin. The Federal Magistrate said that the Mother provided a photograph exhibiting the bruise. At [7] the Federal Magistrate said that the Mother’s “anxiety was raised” by the bruise, and she took the child to neighbours being a medical practitioner and a police officer. The Mother also took the child to SOCA and reported the matter to the Department of Human Services and “eventually took the child to a psychologist”.
The Mother instructed her solicitors to write directly to the Father and the Federal Magistrate at [8] and [9] quoted from the letter which included: “We are in no way laying blame squarely on [the Father]. However, we are saying that whilst the child is in your care he has received such injuries. We therefore wish to advise that our client will not be making the child available for time spent with you during this weekend as scheduled, without an appropriate supervisor with you being allocated”. The Federal Magistrate at [10] noted that there was no allegation that the Father “had hit the child”, although “that is an allegation made today by the mother”. The Federal Magistrate noted at [11] that the Father claimed the child “did injure himself” while in his care but that he “tripped over a chair and hit his chin on his toy Thomas the Tank Engine”.
The Federal Magistrate noted at [12] that both the Mother and the Father gave evidence and were cross-examined. He noted that the Father’s time in the witness box was “short” although he “impressed as being frank and honest in the way he approached answers to questions put to him”. The Federal Magistrate said that the Father “communicated to the effect that the child fell over whilst in his care” to the Mother although was “perhaps not in significant detail” and concluded that the Father’s “explanation seems reasonable”. The Federal Magistrate said nothing about the evidence of the Mother.
The Federal Magistrate discussed other allegations by the Mother, including one being the child returned to the Mother from spending time with the Father with “a sore mouth and head and lack of appetite”. The Federal Magistrate at [13] concluded that that allegation “did not generate action from the solicitors on the mother’s instructions”.
Another allegation was that the Father “effectively forced the child” to spend time with him when the child was ill. The Federal Magistrate interpreted at [14] the Mother’s response that “if [the Father] was a genuine father concerned about the welfare of his son, he would not have insisted on the child going”. At [15] the Federal Magistrate accepted the Father’s evidence that the “child was properly cared for” in relation to this allegation in that he gave the child Panadol as instructed and the child was returned “in an improved state from when he picked the child up”. The Federal Magistrate at [16] observed that the Mother claimed she was “bullied into giving the child up in those circumstances where she requested that [the child] not go on contact with the father” and also asserted that “there were orders entitling her to take that stand”. The Federal Magistrate concluded that the Mother was “certainly mistaken” in that respect as there are no orders “to that degree”.
The Federal Magistrate at [17] then returned to the “context” that he said the proceedings “need to be considered in” and said that this “context” does not reflect well on the Mother.
The Federal Magistrate then at [17] introduced two reports, one by Dr E, who the Federal Magistrate said was “a well known, well respected and credible psychiatrist”; and the other by Mr T, who the Federal Magistrate said was “a well known, well-respected and credible child psychologist”, who had both assessed the Mother in the “earlier proceedings”. The Federal Magistrate said at [18]: “The evidence given by the mother, I must say, resonated very much with the conclusions reached by those two gentlemen about her. I intend to read just passages of their respective reports which I think, as I say, are very reflective of the context in which all of this is happening”.
The Federal Magistrate set out at [19], [20] and [21] parts of what Dr E said in his report. The Federal Magistrate set out at [22] to [26] parts of what Mr T said in his report. The Federal Magistrate concluded at [27] that “[a]fter all of that, both [Dr E] and [Mr T] formed the view that [the child] would be safe in the care of his father. Now, as I have said, that is the context”.
It was submitted by the Mother that the Federal Magistrate referred to and quoted the contents of reports from Dr E and Mr T in the course of delivery of his reasons for judgment, which reports were not in evidence in the hearing of the contravention application. It was submitted that the Federal Magistrate failed to identify that he proposed to read the said reports, at any stage prior to the delivery of his reasons for judgment. The Federal Magistrate failed to provide the Mother's solicitor with an opportunity to address him with respect to his reliance upon the said reports and failed to advise the Mother of his intention to read and rely upon the contents of the reports.
It was also submitted by the Mother that counsel for the Father, in support of the contravention application, quoted from the Mother's affidavit sworn 25 August 2009 and quoted from the report of Ms S in circumstances where the Federal Magistrate refused to accept into evidence the Mother's affidavit and the annexure thereto.
It was submitted by the Mother that during the course of the hearing the Federal Magistrate relied upon matters contained in the Mother's affidavit sworn 25 August 2009 in circumstances where he refused to admit it into evidence.
It was submitted by the Mother that she was denied the opportunity of making a further application for an adjournment based upon the Federal Magistrate's incorporation of the expert’s reports in the determination of the contravention application, and/or seeking to call the said experts for cross-examination.
Then at [28] the Federal Magistrate stated that the “other context that should be taken into account is the nature of the injuries that are said to have necessitated the refusal of any further contact without supervision”. The Federal Magistrate said that the injuries sustained by the child are “in [his] mind” no more that what would happen to children in the “normal course of events that children partake in, such as play, or just plain simply moving about”.
At [29] the Federal Magistrate concluded that he was “satisfied that the account given by [the Father] of how this injury occurred is not reflective of any danger he represents by way of his incapacity to care for [the child]” and that the child is not “likely to be in danger and certainly not an unacceptable risk of harm to him whilst in his father’s care”.
The Federal Magistrate then turned to the relevant principles and stated:
30. The standard of proof required for a finding that there has been a breach in this particular instance is on the balance of probabilities. In other words, if I am satisfied, on balance, that there has been a breach then I should find so. The mother’s position, as I understand it, is that she was justified in her concerns based upon her understanding, her subjective concerns based upon her subjective assessment of the nature and personality of [the Father]. If that was always the case, that a mother could make these assessments based purely and solely upon her own view, then there will possibly be very little time spent by children with their father.
31. The law dictates, and necessitates, that the action of a parent, when being assessed as a breach of an order, must be assessed on the basis of an objective standard and whether any concerns raised by the mother are reasonable. In my view, the mother’s concerns about the child’s welfare are totally unreasonable and there is no history presented to me that would warrant her behaviour in denying the father’s time with the child. The objective evidence is not supportive of any danger to the child that would justify her action and, on the balance of probabilities, I find that she has indeed breached the order as set out.
The Federal Magistrate then at [32] and [33] dealt with a report of Ms S and said:
32. Just very briefly, there was an attempt by the mother to call as a witness a person who has prepared a report. The report, I understand, is prepared by somebody who called herself a child psychologist, a [Ms S]. I refuse that report being submitted, because it was not in the proper form, and also, after considerable questioning of the mother’s representative as to why I should give regard to that report and how it could assist me in the context of this hearing, I really did not get an answer that satisfied me the report would be of any probative value. But there are aspects that came out, both in the evidence and by way of submissions, about the report that really concern me and I am considering whether I ought to report it to the regulatory body in charge of supervising child psychologists.
33. The first thing that concerns me is that, apparently, the child psychologist saw fit to interview a two year old child. That, in itself, is in breach of section 102A of the Family Law Act, and that is a highly concerning aspect. The other aspect of it is, as I got from the wife’s representative, that this particular child psychologist has encouraged a belief in the mother that somehow or other those two very highly-regarded and respected professional and expert witnesses that have previously been involved in this case got it all wrong. That is an extraordinary thing. And the other one that really also concerns me is, on the mother’s evidence, that she identified [Ms S] as somebody worthy of her instructions by the fact that [Ms S], just on seeing her, identified her as “a victim,” which, if that be true, is an extraordinary way to introduce yourself to a client, having formed that view without any knowledge, just on the look of somebody.
34. Be it as it may, needless to say even if the report had have been admitted. I was unsure and unable to ascertain what it was that that report was really going to do to assist in this case apart from, as I said earlier, establish the context where all this is taking place, I could not imagine myself being able to give much weight to it in those circumstances.
In the copy of the reasons for judgment included in the appeal book the following then appears:
35. This case has very disturbing aspects to it. It is not the first time that this court, over its duration of many years, has had instances of what they call “no access mothers.” The law has changed now considerably from when it first was introduced to ensure that the person who has residence of a child is able to guarantee that the other parent has a meaningful relationship. If the custodial parent is unable to do that, then we simply change the residence arrangements.
36. The mother, if she continues in this particular way and, indeed, if the father was to seek to pursue it, if she continues to deny that reasonable time with the father, then she runs the risk of a number of things. First of all, she runs the risk of committing a serious breach which will result, if appropriate, in a term of imprisonment. The second thing that she runs is, of course, that if there is a term of imprisonment, the child will live with the father. But, underlying all of that, of course, if she persists with this sort of behaviour where she denies the contact with the father, the courts will change the residence arrangements. I ask the mother to keep that in mind.
37. I have already given my finding based upon the balance of probabilities, but I have got to say, though, and I do emphasise, this is a significant breach, in my view, and it is reflective of an unhappy history, and it has with it the hallmarks of what we are so used to here of a “no access mum” aspect to it. To try and make sure that it does not happen, I intend to have the mother enter into a bond, and if the breach of that bond happens and is proved beyond reasonable doubt, then we are talking about a serious breach. When we are talking about a serious breach, the penalties we are looking, as indicated, can include a term of imprisonment.
Continuation of the Hearing
The transcript reveals that after the delivery of reasons for judgment there was then the following discussion (Transcript, 25 August 2009, pp 37 to 39):
HIS HONOUR: Yes, now, what do you ---
MR ARNOLD: The attitude of the mother towards those orders and the fact that she has completed a parenting program, which I didn’t appreciate that she had completed the parenting program, which was ordered pursuant to the final orders. It means that it fits in with the category of serious disregard for the orders and moves on to the next stage. Notwithstanding that my client seeks the same penalty at the end of the day and that is a bond with the obligation to comply with the order.
HIS HONOUR: He did mention some make up time.
MR ARNOLD: Along with make up time, for the ---
HIS HONOUR: He hasn’t really missed out on a great deal, has he?
MR ARNOLD: He’s missed two nights, on 7 August (indistinct) worked it out, your Honour. I think I’ll ask him. Five nights.
HIS HONOUR: How does he propose that be made up?
MR ARNOLD: That to be made up on the other weekends and to be completed by a period that your Honour sees fit.
HIS HONOUR: Okay. Do you have anything to say about that, Mr Roubus?
MR ROUBUS: Only, your Honour, that the evidence of the parties has shown that as your Honour said if the mother lacks the insight to deal with this, the child, however, is still of a young age and is finding transition difficult and any make up time that doesn’t take that into account will further exacerbate the problems that are occurring between the parties and with the child.
HIS HONOUR: If it becomes difficult, what I understand of the case the blame, if there is to be blame, lies with the mother and she’s running the risk if she doesn’t make it nice and smooth, she won’t have him.
MR ROUBUS: Well, your Honour, some things are beyond the mother’s control, if the child’s finding it difficult to ---
HIS HONOUR: Well, she was recommended to get some psychiatric or psychological assistance. Has she done that?
MR ROUBUS: No, your Honour, other than speaking to [Ms S], no.
HIS HONOUR: Get somebody else other than [Ms S]. Right.
MR ROUBUS: Yes, she has, your Honour.
HIS HONOUR: Right.
MR ROUBUS: If I may be allowed to ---
HIS HONOUR: Yes. Would you like to get some instructions?
MR ROUBUS: Yes, please, your Honour.
HIS HONOUR: They ought to be along the lines of what best suits the make up time, I think. There will be a bond. I’ll make a bond, all right. I’ll stand down while that’s happening.
MR ROUBUS: Thank you, your Honour.
HIS HONOUR: I might deal with the other matter.
There was then a short adjournment.
The Mother contended that after judgment was delivered the Federal Magistrate made extremely prejudicial comments regarding the Mother, and particularly her attitude to encouraging and facilitating time between the child and the Father. He stated that the contravention constituted “a significant breach, in my view, and is reflective of an unhappy history, and it has with it the hallmarks of what we so used to hear, of a no access mum aspect to it” which manifested the Federal Magistrate’s pre-judgment of the application before him, and the Federal Magistrate's failure to appropriately take into account all of the relevant factors in making the orders that he did.
Upon resumption of the hearing there was brief discussion about compensatory time for the child with the Father and during this discussion the following was said (Transcript, 25 August 2009, p 39 to 40):
MR ARNOLD: Otherwise – and I would press you to make a finding of serious disregard---
HIS HONOUR: But no I’m not doing it at this stage. I’ve already given my finding, based upon the balance of probabilities. But I’ve got to say, though, and I do emphasise, this is a significant breach in my view and it’s reflective of an unhappy history and it has with it the hallmarks of what we’re so used to here, of a no access mum aspect to it. To try and make sure that doesn’t happen I intend to have the mother enter into a bond and if a breach of that bond happens and proved and beyond reasonable doubt, then we are talking about a serious breach and we’re talking about a serious breach. The penalties we’re looking at are twofold – or they can be combined.
One is a term of imprisonment and I should emphasise – I don’t know, Mr Roubus, whether you can persuade your client that this court sentences custodial parents to prison quite a lot, okay, for doing exactly what she’s done to date – so I emphasise that she’s on a bond. If she breaches it she does run the risk of going to prison and when that happens, of course, the father will care for the child. It might lead then to an application that he permanently care for the child. I don’t know, it’s up to him.
There was then a further adjournment for approximately 40 minutes and when the hearing resumed, during very brief discussion, the Federal Magistrate said (Transcript, 25 August 2009, p 41):
HIS HONOUR: Now, [Ms Jets], do you realise the significance of the bond? Come forward thank you and stand at the table next to your counsel. The bond is pursuant to section 70NEC, which provides for a bond to be made out, where I find that there is a less serious breach of orders. However, if there is a further breach of orders there is likely to be a – there will - highly probably considered as serious breach of orders and all those ramifications about penalties of terms of imprisonment, are open to the court. Now, there are conditions of the bond and that is for a period of 24 months you are to be of good behaviour.
That’s a pretty nebulous term, but it means generally speaking and in the context of the family law orders that have been made and you’re to comply – obey and comply with all the orders made in the Federal Magistrates Court, on 20 May and this day. That’s for the future. I’ve acknowledged your signature on the bond and I’ll give you a copy for your records and I will also give a copy to the husband’s practitioner – the father’s practitioner as well and one for the file. I intend to make formal orders as follows.
On 18 September 2009 a Notice of Appeal was filed by the Mother.
Relevant Principles
General
In the written submissions of the Mother there are a number of authorities cited that are relied upon to support her contentions. I will briefly refer to those authorities and the relevant principles that emerge.
Procedure
Section 70NAC of the Act provides as follows:
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.
Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.
The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children. The standard of proof is on the balance of probabilities having regard to the gravity of the allegation. The breach must be shown to be intentional but it does not require proof of contumacious behaviour.
Section 70NAE of the Act states the following:
70NAE Meaning of reasonable excuse for contravening an order
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children 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 Mother ought to be excused in respect of the contravention.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the Mother or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the Mother or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the Mother or the child); and
(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the Mother or the child); and
(b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The respondent must prove that he or she had a reasonable excuse for the contravention. Again, the onus is on the respondent and the standard of proof is on the balance of probabilities. The Act provides a definition of what amounts to reasonable excuse, however, the definition is not exhaustive.
Section 70NEB of the Act is as follows:
(1) If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
attend a post‑separation parenting program;
(b) if the current contravention is a contravention of a parenting order in relation to a child—make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(e) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g) if the court makes no other orders in relation to the current contravention—order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
Note 1:The court may also vary the primary order under Subdivision B.
Note 2: Paragraph (1)(a)—before making an order under this paragraph, the court must consider seeking the advice of a family consultant about the services appropriate to the person’s needs (see section 11E).
(2) The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:
(a) the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and
(b) the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.
(3) If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order.
(4) If:
(a) the current contravention is a contravention of a parenting order in relation to a child; and
(b) the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the court must consider making an order under paragraph (1)(b) to compensate the person for the time the person did not spend with the child (or the time the child did not live with the person) as a result of the contravention.
(5) The court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the court to do so.
(6) In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following:
(a) whether the primary order was made by consent;
(b) whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;
(c) the length of the period between the making of the primary order and the occurrence of the current contravention;
(d) any other matters that the court thinks relevant.
(7) The court must consider making an order under paragraph (1)(g) if:
(a) the person (the applicant) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent) who committed the current contravention committed a contravention of the primary order or that other primary order; and
(b) on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention.
Rule 25B.04 of the Federal Magistrates Court Rules 2001 states:
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.
Note: For the orders that may be made by the Court, see sections 67X, 70NBA, 70NCB, 70NDB, 70NDC, 70NEB, 70NFB, 70NFF, 112AD, 112AH and 112AP of the Family Law Act.
Rule 25B.04 of the Federal Magistrates Court Rules 2001 is almost identical to r 21.1 of the Family Law Rules 2004.
Given the consequences that may follow if a contravention is found and a respondent to an application is required to enter into a bond then the requirements of r 25B.04 of the Federal Magistrates Court Rules should ordinarily be strictly adhered to. The requirements are of long standing.
On behalf of the Mother it was submitted that in Sahari and Sahari (1976) FLC 90-086, the Full Court (Evatt CJ, Pawley and Watson JJ), commenting on the provisions of the former reg 137 of the Family Law Regulations, relating to the procedure on the hearing of sanction and/or contravention applications, which is equivalent to r 21.1 of the current Family Law Rules, stated at 75,411 that those procedures are required to be “strictly complied with”. The Full Court also said that although in some cases the Court may be prepared to dispense with the strict compliance, those cases “must be extraordinary and rare”. The Full Court went on to comment that the procedure set out in reg 137: “clearly invokes the principles of a hearing, analogous to a summary criminal trial”.
In Attreed and Attreed (1980) FLC 90-907, the Full Court (Marshall SJ, Fogarty and Joske JJ) reiterated the principle enunciated in Sahari, stating at 75,731-732: “contempt proceedings must be conducted in a formal manner, as in the case of the person charged summarily with an offence, and with due observance to all the procedures and safeguards applicable to such charges”.
Adequacy of Reasons
The Mother contended that the Federal Magistrate failed to give reasons or adequate reasons and that I would be unable to determine the method of reasoning whereby a particular result has been arrived at, and that it constitutes an error in law resulting in the decree being set aside.
The requirement to provide adequate reasons is well established and discussed in the authorities cited namely Brazel and Brazel (1984) FLC 91-568, Maday and Maday (1985) FLC 91-636, McLean and McLean (1991) FLC 92-196, White and White (1995) FLC 92-648, Douglas and Douglas (2006) FLC 93-300, Dobbs and Brayson (2007) FLC 93-346, and Elspeth and Peter (2007) FLC 93-341.
Unauthorised Use of Material
The Mother contended that the Federal Magistrate relied upon irrelevant or unproved matters in making the order, resulting in a miscarriage of justice.
In Angaston and District Hospital v Thamm (1987) 47 SASR 177 King J said at pp 178-179:
where the judge makes observations of the actions or demeanour of a party, which actions or demeanour are not observable by counsel, and makes use of those observations in a way which has a and makes use of those observations in a way which has significant influence upon the decision of the case, he is required in justice, before making use of such observations, to make those observations and the possibility of using them in the course of his judgement, known to counsel at a stage of the hearing at which counsel still has the opportunity of dealing with them in a proper and effective way:
In Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304, Kirby P (as he then was) said at 311: “If material is used to determine a case which is outside the legal evidence, beyond the permissible exceptions, and is not disclosed to the parties, an irregularity will have occurred which may amount to a breach of the requirement of procedural fairness and necessitate the setting aside of the judgment challenged”: see also Zantiotis and Zantiotis (1993) FLC 92-367 and Chehab and Chehab (1993) FLC 92-371.
In Lamereaux and Noirnot (2008) FLC 93-364 the Full Court (Coleman, May and Boland JJ) set aside the trial judge’s order, where the trial judge had relied upon evidence of an expert given in other proceedings without giving the parties an opportunity to make submissions, and found that it was inappropriate for the trial judge to incorporate the evidence of the expert into his reasons for judgement.
In summary, a judge cannot use any material including his or her observations of the actions or demeanour of a party in relation to any contentious matter unless the parties are given the opportunity to deal with the material or observations.
Apprehension of Bias
The Mother also contended that the Federal Magistrate was biased towards her or there was the apprehension of bias.
In Johnson and Johnson (2000) 201 CLR 488 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said at 492- 493:
[11] … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
[12] That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
[13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (endnotes omitted)
Grounds of Appeal
In the amended notice of appeal there are five grounds of appeal and very detailed particulars provided in support of each ground. Consideration of each of the grounds and supporting particulars reveals that there is a considerable overlapping of the matters complained of in the grounds of appeal and the particulars.
The grounds of appeal are:
1. The Federal Magistrate erred in the conduct of the hearing of the contravention application which resulted in a miscarriage of justice.
2. The Federal Magistrate's conduct of the hearing of the contravention application resulted in a miscarriage of justice by reason of the Federal Magistrate manifesting judicial prejudice and/or bias and/or the Federal Magistrate pre-judging relevant issues.
3. The Federal Magistrate relied upon irrelevant or unproved matters and omitted to take into account relevant matters in arriving at his decision and in making the order on the 25th August, 2009, resulting in a miscarriage of justice.
4. There was procedural unfairness resulting in a miscarriage of justice.
5. The Federal Magistrate erred in law in the conduct of the hearing and in arriving at his findings in making the orders of 25 August 2009.
I do not propose, as I indicated in discussion, and it was not traversed, to deal seriatim with each of the grounds of appeal and each complaint set out in the particulars provided in support of each ground. I also do not propose to deal with each matter argued for in the written and oral submissions of each party.
However, I will briefly summarise some of the contentions of the Mother which are relied upon in support of ground 2 as they are indicative of the nature of the complaints made by the Mother.
It was submitted that the Federal Magistrate manifested prejudice against and/or prejudged relevant evidence proposed to be called on behalf of the Mother in that:
·The Federal Magistrate indicated his assessment that those witnesses would have little bearing or weight in the determination of the matter, without hearing from those proposed witnesses.
·The Federal Magistrate requested the Mother’s solicitor to state the substance of the evidence of the proposed witnesses, in circumstances where the procedure dictates that the Federal Magistrate was to hear the evidence to be adduced on behalf of both parties and then make a determination after having heard such evidence.
·The Federal Magistrate regarded the contents of the correspondence, being Annexure B to the Father’s affidavit filed 11 August, 2009 as being determinative of the issues to be tried.
·The Federal Magistrate questioned the seriousness of the alleged injuries sustained by the child, whether the child required hospitalisation and whether the Mother's motivation in not making the child available was appropriate, prior to hearing any evidence relating to those issues. The Federal Magistrate thereby elicited such information from the Mother’s solicitor and determined that he was less than satisfied about those issues prior to any evidence being called.
·The Federal Magistrate stated his belief that the Mother had fixed on what might appear to be a minor injury to justify a breach of consent orders and that, in his view, the Mother required the occurrence of a significant incident to convince the Federal Magistrate that she had a reasonable excuse in not making the child available on 7 August 2009.
·The Federal Magistrate stated that he refused to rely upon the assessment of Ms S as he believed inter alia such assessment to be inferior to the expert opinions of Mr T and Dr E in circumstances where none of the said experts’ assessments or opinions were admitted into evidence before the Federal Magistrate, and, he neglected to advise the parties that he had relied upon the expert opinions of Mr T and Dr E until same became obvious during the course of the reasons for judgment.
·The Federal Magistrate commented on the contentions and weight of the respective expert assessments when he was unaware of the contents of Ms S’s assessment and the expert opinions of Mr T and Dr E were not obtained in relation to the contravention application and were not admitted into evidence.
·The Federal Magistrate asked the solicitor for the Mother why the Mother had not accepted the explanation provided to her by the Father as to the reasons the child returned to the Mother hurt after spending time with the Father.
·The Federal Magistrate refused to admit the assessment of Ms S into evidence or permit her to swear an affidavit.
·The Federal Magistrate did not read the assessment by Ms S yet was critical of her role in the proceedings and stated that Ms S would not carry much weight in challenging Mr T or Dr E, which evidence was not before the Court.
·The Federal Magistrate was critical of the Mother in having caused an assessment to be prepared by Ms S and critical of the Mother in seeking to rely upon such assessment in the proceedings.
·The Federal Magistrate stated that he regarded the injury to the child as “just minor and consistent with what children suffer in just the normal everyday living experiences” and by that relied upon the alleged lack of severity of injuries being determinative of the Mother’s lack of a reasonable excuse to the contravention application, in circumstances where at that stage he had not heard any viva voce evidence with respect to the contravention application.
It was also submitted that on any objective consideration of the addresses and exchanges between the Federal Magistrate, counsel for the Father and solicitor for the Mother, that the Federal Magistrate clearly manifested that he had determined that the Mother did not have a reasonable excuse in not allowing the child to spend time with the Father on 7 August 2009, before any evidence was called at the hearing.
Conclusion
This is a difficult case and at the outset I record that I am troubled about the way the hearing was conducted. However, I am of the view that the appeal can be readily disposed of.
There are a number of obvious fundamental errors made by the Federal Magistrate that do not require much elaboration. In my view, a number of the errors are readily apparent from consideration of what I have set out above which was said and happened during the hearing.
In my view, there is considerable merit in the complaints made by the Mother. Overall, I accept the submissions on behalf of the Mother and observe that there are a number of complaints made which, in my view, are well established. I am satisfied that there were a number of appealable errors made by the Federal Magistrate and that there was a miscarriage of justice.
I will briefly outline my reasons for reaching this conclusion.
The Federal Magistrate did not adopt the correct procedure. It was inappropriate for the Federal Magistrate to seek to ascertain in discussion before the case of the Father was presented, what the case of the Mother was, let alone make significant comments about the Mother’s case.
The Federal Magistrate should have first heard the case for the Father which was set out in his affidavit and in respect of which there was no controversy. The Federal Magistrate should not have allowed the Father to first give oral evidence dealing with what the Mother proposed to adduce when she was required to provide a response.
The Federal Magistrate would then have allowed cross-examination of the Father.
The Federal Magistrate having dealt with the Father’s case should have then made a finding that he was satisfied that there had been a contravention and then called upon the Mother to respond. At this point the Mother would have been entitled to indicate that she contended that she had a reasonable excuse.
The Federal Magistrate would then require the Mother to put her case. The Mother would either have sought an adjournment so that she could prepare her case or she would have indicated the evidence she relied upon and then sought to read it.
The Federal Magistrate would allow the Mother to put her case and also allow cross-examination of the Mother and any of her expert and lay witnesses. The Federal Magistrate would also have allowed the Father to put a case in answer to that of the Mother and at that point, the Father could reply to what the Mother contended and he could be cross-examined.
Then having heard the Mother’s case, and any case in reply by the Father, the Federal Magistrate, after hearing submissions, would make a determination and give reasons as to whether or not the Mother had established that she had a reasonable excuse. In the circumstances of this case, all of what the Mother said in her affidavit was relevant, as was the foreshadowed evidence of her proposed expert and lay witnesses.
If the Federal Magistrate determined that the Mother did not have a reasonable excuse then he would have made a finding that the Mother had contravened an order without reasonable excuse and would then have heard submissions and perhaps evidence as to the consequence of his finding.
In my view, none of the above happened. There was a failure by the Federal Magistrate to appropriately deal with the application of the Father and the Mother’s response.
The Federal Magistrate should not have refused the Mother’s application for an adjournment to call evidence. The Federal Magistrate should also have allowed the Mother to rely upon the evidence in her affidavit of 25 August 2009 and the evidence of any expert or lay witnesses she proposed to call. The Federal Magistrate failed to allow the Mother to adduce relevant evidence.
The Mother’s evidence in her affidavit and the foreshadowed evidence of the expert and lay witnesses would prime facie establish a reasonable excuse. The issue was not, as the Federal Magistrate appears to have considered, whether the Father had abused the child or there was a risk of harm to the child in the care of the Father, but whether the Mother had a reasonable belief that the child may be at risk of harm. It is not a case where the Mother simply took steps to prevent the child spending time with the child. The Mother had consulted with various persons, including a lawyer and also an expert and taken advice from the expert to whom she was referred by her lawyer.
During submissions before me, counsel for the Father suggested that the Federal Magistrate may have been endeavouring to circumvent or limit the application of the Mother filed on 25 August 2009 in which she sought a variation of the final parenting orders. If this is what the Federal Magistrate was attempting to do then it was inappropriate.
For the above reasons the appeal will be allowed. However, there are other significant matters and the following are in no particular order of priority.
The Federal Magistrate should not have relied upon the evidence contained in the previous reports of the two experts. Even though these reports had been identified in the report of Ms S and in the submissions of the solicitor for the Mother, the Federal Magistrate should not have had any regard to what was in these reports without giving an appropriate opportunity to all parties to be heard as to the use, if any, to be made of such evidence.
Next, the Federal Magistrate, on any fair reading of the transcript of the hearing before him, either prejudged significant issues, or at the very least, said things that would create an apprehension of predetermination.
I have read all the material and I have no doubt that even before the Father commenced his case, a fair-minded lay-observer might reasonably apprehend that the Federal Magistrate might not bring an impartial and unprejudiced mind to the resolution of the question he was required to decide. In fact, I am of the opinion that the Federal Magistrate had formed a view about whether or not the Mother would be able to establish a reasonable excuse.
I am also of the view that in relation to a number of matters, including the orders made the Federal Magistrate failed to give adequate reasons.
I should also add that, in my view, the identification of some type of category of party falling within the description of “no access mum” was also inappropriate.
Redetermination
It was agreed that in the event the appeal succeeded that the matter should be remitted for rehearing by a Federal Magistrate other than Federal Magistrate O’Dwyer. Independently of this concession, I agree that the hearing should be remitted.
Costs
I propose to make orders for the filing of written submissions in relation to any application for costs.
I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan.
Associate:
Date:26 March 2010
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