Jordan and Jordan (No 2)

[2010] FamCA 341

FAMILY COURT OF AUSTRALIA

JORDAN & JORDAN (NO. 2) [2010] FamCA 341

FAMILY LAW – CONTEMPT – Contravention of Court order – Prima facie case – hearsay evidence of children

Family Law Act 1975 (Cth) Division 13A Pt VII, ss 69ZM(1), 69ZV, 69ZV(2), 70NAA(1), 70NAF(1), 70NAF(3), 112AD
Evidence Act 1995 (Cth) s 140(1)

Sahari and Sahari (1976) FLC 90-086
Re Bramblevale, Ltd (1969) 3 All E.R. 1062
Lindsey and Lindsey (1995) FLC 92-638

The Commissioner for Water Resources v Federated Engine Drivers’ and Firemen’s Association of Australasia Queensland Branch and Ors (1988) 2 Qd R 385
Witham v Holloway (1995) 131 ALR 401
Dobbs & Brayson (2007) FLC 93-346

APPLICANT: Ms Jordan

RESPONDENT: Mr Jordan

FILE NUMBER: NCC 1497 of 2007

DATE DELIVERED: 14 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle

JUDGMENT OF: Johnston JR

HEARING DATE: 7 December 2009

REPRESENTATION

FOR THE APPLICANT: Ms Jordan, mother in person

COUNSEL FOR THE RESPONDENT: Mr Hamilton

SOLICITOR FOR THE RESPONDENT: Kim Monnox & Associates

Orders

1. That both parties have leave to request the re-listing of these proceedings for further hearing by arrangement with my Associate.

IT IS NOTED that publication of this judgment under the pseudonym Jordan & Jordan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1497  of 2007

MS JORDAN

Applicant

And

MR JORDAN

Respondent

REASONS FOR JUDGMENT

Introduction and Application

1. These are contravention proceedings.  The parties in the proceedings are Ms Jordan and Mr Jordan.  For convenience I shall refer to them as “the mother” and “the father” respectively.

2. The mother filed a Contravention Application on 11 June 2009.  The matter was listed for return on 6 July 2009.  On that occasion it came before me.  I ordered that it be adjourned to 1 September 2009.  I also made orders that any further affidavit be filed and served by the mother not later than 21 August 2009.  On 1 September 2009 the mother informed the Court that she was unwell and had been advised that she needed to attend hospital.  In those circumstances I adjourned the proceedings to 7 December 2009.

3. In her Contravention Application the mother alleges that the father has breached current parenting orders.  In her Application she specified the date of the breach as being 22 May 2009 at approximately 6:00 pm. Her particularisation of the alleged contravention was as follows:

   “[The father] did not stay overnight at the paternal grandparents home.”

4. The mother filed an affidavit affirmed by her on 3 June 2009 in support of her application as well as affidavits affirmed on 5 August 2009 by each of her parents. 

5. The first relevant order was paragraph 2 of the orders made on 20 March 2009.  This provides as follows:

   That the father is to spend time with the children each alternate weekend from 4:30 pm Friday to 4:30 pm Saturday commencing on Friday 27 March 2009.

6. The other relevant order is paragraph 4 of the orders made on 20 March 2009 which provides as follows:

   That for the first four occasions on which the father spends time with the children pursuant to these orders the father is to ensure that the children spend overnight at the home of the paternal grandparents at [S] and thereafter they are to spend overnight at the father’s home at [S]. 

7. The children in respect of whom the orders are made are K born in January 2003 and R born in March 2005.  There was a problem with the Contact Centre being available on Friday, 27 March 2009.  I accept that the time to be spent with the children by the father was not able to be commenced on that occasion.  That caused the Court to make further orders on 8 May 2009.  Significantly paragraph 1 of those orders provided as follows:

   That Order 2 made by this Court in these proceedings on 20 March 2009 be varied to delete “27 March 2009” and insert in lieu thereof “8 May 2009”.

8. Accordingly, this had the effect of substituting 8 May 2009 as the first occasion on which the children were to spend time with their father pursuant to the orders of 20 March 2009.  On this basis I am satisfied that the date on which the mother alleged that the orders were contravened, namely 22 May 2009, was an occasion on which the children were to spend time with their father pursuant to the orders of 20 March 2009.  I am further satisfied that it was in fact the fourth occasion on which the father was to spend time with the children pursuant to the orders and that he was to ensure that the children would spend the time overnight at the home of their paternal grandparents.

9. The first submission made on behalf of the respondent father was that the mother has not particularised any contravention in the form of words which are used in the application as referred to above.  This submission was on the basis that the orders did not require the father to stay overnight at the paternal grandparents’ home but rather required that the children stay overnight at the paternal grandparents’ home.  Accordingly, it was submitted that the form as drafted in the application was not sufficient to constitute the alleged contravention.  However, I informed learned counsel for the father that I did not propose to deal with the application on the basis of form but rather on the basis of substance.  I indicated that in my view the substance was reflected not only in the application but also in the material in the affidavits in support of the mother’s application.  The substance on this basis, in my view, was that the mother was really alleging that on 22 May 2009 the father failed to ensure that the children spent the overnight time at the home of their paternal grandparents at S as required by paragraph 4 of the orders.

10. I then ruled on various objections which learned counsel for the father made to the affidavits in support of the mother’s application.  The fundamental aspect of the determination about whether the mother was able to establish a prima facie case for a breach lies in the admissibility of certain hearsay statements by the children to their grandparents and to their mother.  Learned counsel for the father conceded that in the event that I did not accept his objection to this hearsay material then the Court would have to make a finding of a prima facie case for a breach.

11. Learned counsel for the father drew my attention to s 69ZV(2) of the Family Law Act 1975. This provides as follows:

    Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.

12. The effect of this is to establish an exception to the rule against hearsay. 

13. The mother’s application is brought pursuant to Division 13A of Pt VII of the Act. Notwithstanding the fact that the enforcement division, namely Division 13A, is within Pt VII of the Act which deals with matters relevant to the welfare of children it was submitted by learned counsel for the father that the real nature of the mother’s application is that it is an application involving a finding by the Court that the father has contravened an order of the Court. That is, it is a matter which is quasi-criminal in nature and not a matter which goes to the welfare of children. It was submitted that if the Court accepted that submission then the Court would be satisfied that the provisions in s 69ZV would not operate so as to make the necessary hearsay evidence admissible. It was submitted that on this basis the Court would not make a finding of a prima facie case for a breach.

Some history

1. There is of course something to be said in support of learned counsel’s submission that these proceedings are quasi-criminal in nature.  After all, the nature of proceedings for civil contempt has been the subject of much consideration by courts including this Court over many years.  For example, the Full Court of this Court in the very early case of Sahari and Sahari (1976) FLC 90-086 was considering consequences which flow from the disobedience of an order made under the Family Law Act 1975 and whether such disobedience is in itself a crime. Observations were made by the Full Court of numerous authorities where courts have regarded disobedience of court orders to be criminal in character, for example at page 75,398 the reference to Re Bramblevale, Ltd (1969) 3 All E.R. 1062, in which Lord Denning M.R. said (at 1063) as follows:

   A contempt of court is an offence of a criminal character …

2. There are similar references during the course of consideration by the Full Court of this Court in the case of Lindsey and Lindsey (1995) FLC 92-638 of what standard of proof was to be applied in proceedings pursuant to s 112AD of the Act (contravention of orders under the Family Law Act 1975). For example at page 82,432 in making observation about the common law the Full Court referred to a passage from The Commissioner for Water Resources v Federated Engine Drivers’ and Firemen’s Association of Australasia Queensland Branch and Ors (1988) 2 Qd R 385 in which McPherson J said (at page 392) as follows:

   It is well settled that proceedings for contempt are quasi-criminal or penal in nature … the High Court has recently observed that there is ‘much to be said’ for the view that ‘all contempts should be punished as if they are quasi-criminal in character.’ (Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at p.109.)

3. The Full Court also referred to the decision of the High Court of Australia in Witham v Holloway (1995) 131 ALR 401 in which Brennan CJ, Deane, Toohey and Gaudron JJ held that “all proceedings for contempt ‘must realistically be seen as criminal in nature’ …” and that all charges of contempt must be proved beyond reasonable doubt.

4. However, in Lindsey the Full Court noted that relevant provisions of the Evidence Act 1995 (Cth) had not been in operation at the time the High Court heard Witham v Holloway. The Full Court said that the High Court therefore did not consider the distinction between an “offence against or arising under Australian Law” and proceedings concerning the breach of a civil order, including proceedings under s 112AD of the Act. Sub-section 140(1) of the Evidence Act provides as follows:

   In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

5. The Full Court noted this and went on to say that the crux of the issue in Lindsey therefore was whether proceedings under s 112AD of the Family Law Act 1975 were civil proceedings as defined in the Evidence Act 1995.  The Full Court judges said in their opinion they were.

6. Against this background Parliament enacted Division 13A of the Act and included this in Part VII of the Act. Amongst the provisions are sub-sections 70NAF(1) and (3). Sub-section 70NAF(1) provides as follows:

   (1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

7. Sub-section 70NAF(3) provides as follows:

   (3)The court may only make an order under:

   (a)paragraph 70NFB(2)(a) (community service order), (d) (fine) or (e) (imprisonment); or

   (b)paragraph 70NFF(3)(a) (fine following a breach of a community service order or bond); if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.

8. The Full Court considered these provisions in their decision in Dobbs & Brayson (2007) FLC 93-346. At page 81,929 the Full Court said as follows:

   … we have considered the revised Explanatory Memorandum accompanying the Family Law Amendment (Shared Parental Responsibility) Bill (2005), where it is said:

   Section 70NAF replaces section 70NEA in the existing Act. It provides clarification of the standard of proof to be applied by the court in considering enforcement applications. The current test provided by section 140 of the Evidence Act 1995 is the civil standard of proof, the balance of probabilities, with the court to take account of the gravity of matters. Section 70 NAF aims to assist practitioners and self-represented litigants by clarifying the circumstances in which the court will apply a different standard of proof.

   New subsection 70NAF(1) specifies that the court should generally apply the civil standard of proof, the balance of probabilities, in considering matters in proceedings under Division 13A of Part VII of the Act. This is subject to subsection 70NAF(3), which provides that a stricter standard applies to orders being considered under the more serious contravention applications that may incur a criminal penalty under provisions in Subdivision F.

   New subsection 70NAF(2) clarifies that the court should also apply the civil standard when determining whether a person had a reasonable excuse for having contravened an order affecting a child under this Act. This approach should mean that it is easier for many less serious contraventions to be dealt with by the court as they will not need to be treated as a quasi-criminal proceeding.

   New subsection 70NAF(3) provides that a stricter standard of proof, requiring the court to be satisfied beyond reasonable doubt, applies to matters to which Subdivision F applies when a court is considering a criminal consequence for the contravention of an order (for example, imposing a bond, a fine, or a sentence of imprisonment). This is appropriate given the consequences for the individual of orders that impose criminal sanctions.

Conclusion

1. In all these circumstances, it is my view that Division 13A provides a very broad set of provisions which enable the Court to deal with a broad range of alleged contraventions of orders made under the Family Law Act 1975.  This broad range of alleged contraventions includes not only the more serious contraventions, or those in the nature of quasi-criminal matters, but also less serious contraventions which fall short of what would reasonably attract a criminal sanction.

2. On this basis, in my view, it is probably not correct to describe the complaint in the present proceedings as being of a quasi-criminal nature.  From what I understand of the allegations at this point, I would not regard the matter as falling within the area of the most serious contraventions and therefore not regard the matter as quasi-criminal in nature.

3. Accordingly, I am unable to accept the thrust of the submission by learned counsel for the father that the complaint is quasi-criminal in nature and not a matter relating to the welfare of children.

4. In any event, s 70NAA(1) within Division 13A provides as follows:

   (1)This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.

5. Clearly the Court’s jurisdiction to deal with the mother’s contravention application arises out of Division 13A. And there can be no question that Division 13A forms a part of Part VII of the Act. Part VII of the Act deals with the welfare of children. As indicated above, s 69ZV(2) of the Act provides, in effect, an exception to the rule against hearsay. Sub-section 69ZV(2) of the Act is in Division 12A of Part VII. Sub-section 69ZM(1) provides that Division 12A applies to proceedings that are wholly under Part VII. Accordingly, in my view, s 69ZV(2) of the Act applies in proceedings under Division 13A of the Act because such are wholly under Part VII. For these reasons therefore, in my view, the hearsay exception provided by s 69ZV(2) of the Act is available to enable representations allegedly made by a child to be admissible as evidence in proceedings such as the present proceedings.

6. Accordingly, I overrule the objections by learned counsel for the father and have the view that the Court should continue to hear the proceedings and not decline to admit hearsay statements by the children solely on the basis of the law against hearsay.

7. I propose to continue hearing the mother’s contravention application.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     

Date:              14 April 2010