K and F
[2000] FMCAfam 25
•5 September 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| K & F | [2000] FMCA fam 25 |
| PARENTING ORDERS – Attendance of prisoners at court |
| Applicant: | A G K |
| Respondent: | T F |
| File No: | ZP774 of 2000 |
| Delivered on: | 5 September 2000 |
| Delivered at: | Parramatta |
| Hearing Date: | 30 August 2000 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Himmelreich |
| Solicitors for the Applicant: | Legal Aid Commission of NSW, Solicitors, DX 8293 Parramatta |
| No appearance by Respondent |
ORDERS
That the oral application for the order pursuant to s.77 of the Crimes (Administration of the Sentence) Act is dismissed.
I request that the Governor of the Metropolitan Remand and Reception Centre, Silverwater do all things necessary to ensure the attendance of A K on 13 September 2000 at the Federal Magistrate’s Court, Parramatta.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 774 of 2000
| A G K |
Applicant
And
| T F |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings relate to parenting orders, namely residence and contact concerning the chid, D A K born 4 August 1999 (“the child”).
The applications
Mr A K (“the Father”) filed an Application for Final Orders on 28 June 2000. The application was filed in the Family Court at Parramatta.
Service of the application on the Respondent, T F, was effected on
10 July 2000. The Mother has not filed a response in the proceedings. On 15 August 2000 the proceedings were transferred to the Federal Magistrate’s Court.
Relevant events
The Father was born on 12 August 1976 and is now aged 24 years. The Mother was born on 18 October 1977 and is now aged 22 years. There is one child of their relationship, D A K, born on 4 August 1999. The child’s birth certificate has not yet been filed with the court.
The orders sought by the Father in his application are as follows:
(1)That the child of the relationship, D A K, born 4 August 1999 reside with the Mother.
(2)That while the Father is in custody, the Father shall have contact with the child as follows:
(a)For a period of not less than 1 hour every two months. Such contact to be facilitated by the Mother attending with the child to visit the Father.
(3)That upon the Father’s release from custody, the Father shall have contact with the child at such times as agreed upon by the parties.
(4)That the Mother shall provide the Father with a current photograph of the child not less than once every six (6) months.
(5)That the Mother shall ensure that any cards, letters or gifts that are sent by the Father to the child are given to the child.
(6)That the Mother shall advise the Father of her current address and notify the Father of any change of address within seven (7) days of such change.
The father’s current circumstances
The Father is a prisoner, currently on remand at Her Majesty’s Prison, Silverwater. He has been in prison for approximately twelve (12) months and has not yet stood trial.
The proceedings
When the proceedings came before me on 15 August 2000, I made the following Orders:
(1)That pursuant to section 62F(2) the parties attend confidential counselling and I note that as the Applicant Father is currently in gaol that counselling will need to take place at a date and time fixed well in advance and by telephone.
(2)That the matter be adjourned before me on 13 September 2000 at 10 am.
(3)That liberty be granted to both parties to apply for further directions on 72 hours notice
Notation
(4)That if there is no attendance by the Respondent Mother, that the Applicant Father has indicated that he will seek that the matter proceed to an undefended hearing on that day, which may result in orders being made as sought by him in his Application for Final Orders.
Direction
(5)That T F attend court on 13 September 2000 at 10 am.
At the conclusion of the proceedings, Ms Walker for the Father, requested that I make an order pursuant to s77 of the Crimes (Administration of Sentence) at 1999 to secure the attendance of her client when the matter next came before the Court on 13 September 2000. These reasons relate to that oral application. Relevantly, the Applicant was present at Court on 15 August 2000, pursuant to an Order made under s77 of the Sentence Act, which order was made by a Judge of the Family Court. After reviewing the legislation I caused the matter to be re-listed before me and took submissions from the Father’s representative as to the s77 application.
Section 77 of the Crimes (Administration of Sentence) Act 1999 (NSW) provides:
“1.If an appropriate authority is satisfied that:
(a)It is necessary that an inmate should attend before it for the purposes of any legal proceeding, inquest or inquiry; and
(b)The absence of the inmate may prejudice the rights of a party.
the authority may make an order directing the governor of the correctional centre in which the inmate is held to cause the inmate to be produced at the court or other place at which the proceeding, inquest or inquiry is being, or is to be, held.
2.Such an order is sufficient authority for the governor to cause the inmate to be produced in accordance with the order.
3.An inmate produced in accordance with such an order is taken to be in lawful custody while in the actual custody of the governor, a correctional officer or a police officer.
4.It is the duty of the person having actual custody of the inmate to return the inmate to the correctional centre from which the inmate was produced as soon as the appropriate authority permits.
5.In this section:
Appropriate authority means:
(a)A court; or
(b)A coroner; or
(c)The Independent Commission Against Corruption; or
(d)A Royal Commission; or
(e)The Victims Compensation Tribunal; or
(f)The senior administrative officer (such as the clerk or registrar) of a court; or
(g)A person prescribed by the regulations for the purposes of this definition.
Correctional officer means:
(a)Correctional officer engaged in court security or escort duties; or
(b)A person employed on a temporary basis within the Department to perform court security or escort duties, or (c) a person holding an authority under section 240 C:\doc-conversion\cosa1999348\s240.htmlto perform escort duties.”
Section 3(1) of the legislation provides a definition of “Court” in the following terms:
“courtmeans:
(a)The Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or a Local Court; or
(b)Any other court that, or person who, exercises criminal jurisdiction.
but, subject to the Children (Criminal Proceedings) Act 1987, does not include the Children's Court or any other court that, or person who, exercises the jurisdiction of the Children's Court.”
No Regulations have been made under the Act for the purposes of s77(5)(g). Neither the Federal Magistrate’s Court, nor indeed other Federal Courts, including the Family Court of Australia, are included in the definition of “Court” as contained in s3(1) of the Act. Thus it is clear, that when exercising civil jurisdiction these Courts cannot make an order under s77 of the Crimes (Administration of the Sentence) Act for the purpose of attendance of a prisoner.
The practice which has until this year been followed by the Family Court of Australia to secure the attendance before it of prisoners held in NSW correctional centres has been to issue an order under s.44 of the Correctional Centres Act, 1952 (NSW) (formerly the Prisons Act). These orders were usually made by a judge in chambers. S.44 was repealed with the general repeal of the Correctional Centres Act effective from 3 April 2000. Section 44 had provided:
“(1)If an appropriate person or body is satisfied that it is necessary that an inmate should attend before it, him or her for the purposes of any legal proceeding, inquest or inquiry then pending and that the absence of the inmate may prejudice the rights of a party, the person or body may make an order directing the governor of the correctional centre in which the inmate is imprisoned to cause the inmate to be produced at the court or other place at which the proceeding, inquest or inquiry is being held.
(2)Such an order is sufficient authority for the governor to cause the inmate to be produced in accordance with the terms of the order.
(3)An inmate produced in accordance with such an order is taken to be in lawful custody while in the actual custody of the governor of the correctional centre, an officer or a police officer.
(4)It is the duty of the governor, officer or police officer having actual custody of the inmate to return the inmate to the correctional centre from which the inmate was produced as soon as the appropriate person or body permits.
(5)In this section, appropriate person or body means:
(a)A court of record, a judge of such a court or a person constituting such a court; or
(b)The Victims Compensation Tribunal; or
(c)A coroner; or
(d)A Clerk of a Local Court, a Registrar of the Children’s Court, a Registrar or assistant Registrar of the District Court, a Registrar or Deputy Registrar of the Supreme Court or the Registrar of the Court of Appeal; or
(e)A person prescribed by the regulations for the purposes of this definition.”
“Court” was not defined in the Act. While it is likely that the term would properly be limited to a NSW court, and thus exclude the Federal Courts including the Family Court of Australia, nonetheless the NSW prisons authorities acted on these orders when made by the Family Court.
Inmates detained in New South Wales correctional centres can be the subject of a Local leave order and inmates required in other parts of Australia (from New South Wales Correctional Centres) can be the subject of an Interstate leave permit.
Section 25 of the Crimes (Administration of Sentences) Act provides for Local leave orders and section 29 provides for Interstate leave permits. Section 25 provides:
“1.The Commissioner may make an order (a local leave order) requiring an inmate to be taken from a correctional centre to any place specified in the order:
a)On such conditions and for such period as may be specified in the order; and
b)For such purpose as the Commissioner considers appropriate.
2.Without limiting subsection (1)(b), the purposes for which a local leave order may be made include the following:
a)Enabling an inmate to be interviewed by a police officer, or by an officer of a law enforcement agency, in connection with the commission of an offence in a correctional centre, whether or not the offence was committed or is suspected of having been committed by the inmate;
b)Enabling an inmate to assist in the administration of justice.
3.The conditions to which a local leave order is subject must include such conditions as are required by the regulations to be included in such an order.
4.Subject to subsection (3), the Commissioner may, at any time:
a) Vary or omit any condition of a local leave order; or
b) Substitute or add new conditions to a local leave order; or
c) Revoke a local leave order.”
Commissioner is defined in section 3(1) to mean “the Commissioner of Corrective Services”.
Section 29 provides:
“1.The Commissioner may issue an interstate leave permit to an inmate of a corrections centre for leave to travel to and from, and remain in, a participating State for a specified period:
a)If the inmate does not have a high security classification, on any grounds that the Commissioner considers appropriate; or
b)If the inmate has a high security classification, only if the leave is for medical treatment or for some compassionate purpose.
2.In particular, the Commissioner may issue an interstate leave permit to an inmate who is an Aboriginal person if satisfied that the purpose of the leave is:
a)To enable the inmate to attend a funeral service or burial of a member of the inmate’s immediate or extended family; or
b)To enable the inmate to be present at an occasion of special family significance to the inmate’s immediate family or extended family.
3.The period specified in an interstate leave permit must not exceed 7 days.
4.An interstate leave permit is subject to such conditions (including conditions relating to the escort o the inmate) as the Commissioner specifies in the permit or as may be prescribed by the regulations.
5.The Commissioner may, by instrument in writing, appoint any correctional officer to be an escort for the purposes of this Subdivision.
6.In this section, high security classification means a classification prescribed by the regulations as a high security classification.”
This process of leave orders and permits is not without difficulty. There are restrictions on the issue of interstate permits and the final issue of an order or permit rests on the administrative decision of the Commissioner. This however is the procedure that must be followed until such time as regulations for the purpose of s77(5)(g) are prescribed that expand the definition of “appropriate authority” to include Federal Magistrate, Judge of the Family Court or Federal Court.
A request to by a prisoner to attend court requires the exercise of discretion by the relevant officer. In considering this prisoners request I have considered the following factors.
b)Is the prisoner represented?
c)The nature of the attendance;
d)Nature of the proceedings;
e)Alternate methods of participation that may be made available, for example videoconferencing or telephone;
f)Whether the matter is listed for hearing;
g)Inter-party security issues.
The Father’s application is listed next week for mention. The Mother has not yet attended court although I am satisfied she has been personally served. In these circumstances the matter may proceed on an undefended basis and in those circumstances the Father’s attendance is essential to enable him to give evidence.
The orders I make are:
(1)That the oral application for the order pursuant to s.77 of the Crimes (Administration of the Sentence) Act is dismissed.
(2)I request that the Governor of the Metropolitan Remand and Reception Centre, Silverwater do all things necessary to ensure the attendance of A K on 13 September 2000 at the Federal Magistrate’s Court, Parramatta.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date:
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