P and R
[2003] FMCAfam 350
•12 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & R | [2003] FMCAfam 350 |
| FAMILY LAW – Warrant of Arrest – failure to appear on return date of application for contravention of child order – whether application for contravention of child order misleading – whether failure to comply with Rules requiring Court heading relevant – release on undertaking considered appropriate. |
Family Law Act 1975, ss.65Q(1)(d), 65S(1)(b), 65T, 112AD
Federal Magistrates Court Rules 2001, R 2.04(3)
| Applicant: | LP |
| Respondent: | PJR |
| File No: | MLM 3789 of 2003 |
| Delivered on: | 12 August 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 12 August 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Solicitors for the Applicant: | No appearance |
| Respondent: | In person |
ORDERS
UPON THE UNDERTAKING GIVEN THIS DAY BY THE RESPONDENT TO APPEAR AT THE FEDERAL MAGISTRATES COURT AT MELBOURNE ON
9 SEPTEMBER 2003 AT 10 A.M.
The Respondent be released from custody.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 3789 of 2003
| LP |
Applicant
and
| PJR |
Respondent
REASONS FOR JUDGMENT
In this matter a warrant for arrest was issued on 5 August 2003 seeking the arrest of PJR, the Respondent to an application for contravention of child order filed on 12 June 2003. The warrant of arrest has been duly executed and the Respondent has attended court this day.
He has given evidence in relation to the service of the application for contravention of child order and has verified an acknowledgment of service signed by him indicating that the application for contravention was served upon him on 26 June 2003. When the matter was listed before the court on 5 August 2003 he did not attend. It was in those circumstances that the warrant for his apprehension was issued by the court.
The application for contravention alleges a breach of paragraph 5 of orders made by the Family Court of Australia on 3 February 2003. On that date a number of orders were made in relation to children's matters and in particular orders in relation to the child, referred to in the orders as KR–P, born 25 October 1994. An order made on that day was:
“That within 21 days of the date of these Orders
(a)the Father forward to the Mother's Solicitor an original ‘Certificate of Extract of Entry in the Register of Births’ for himself;
(b)the Father complete and sign Part D of the ‘Application to Register a Change of Name form’ and forward the form to the Mother's Solicitor.”
It is that order which is alleged to have been breached. The application for contravention by order of the court made 5 August 2003 has been adjourned for hearing on 9 September 2003 at 10 am.
The Respondent gave evidence before me this day and has indicated that although, as I stated earlier in this judgment, he had received the relevant documents he was not clear in his own mind in relation to attending court, having been through what he describes as a period of some seven years of family law proceedings. It is clear to me in the circumstances that he has at least indicated a willingness to attend the court on the next occasion, 9 September 2003, and indeed during the course of submissions earlier this day indicated a preparedness to comply with the orders said to be the subject of a contravention application.
In those circumstances, it is my view, upon receiving an undertaking in writing, which I have received from the Respondent to attend court upon 9 September 2003, it is appropriate that I should order his release from custody. I should add for the sake of completeness that there may well be some justification for a degree of confusion in this matter. The application for contravention of child order does not bear the correct title of the court. It refers to “Federal Magistrates Service” when it should refer, in accordance with Rule 2.04(3) of the Federal Magistrates Court Rules 2001, to the “Federal Magistrates Court of Australia”. The document on its face does not, in my view, provide adequate assistance in terms of the location of this court, albeit that this court shares common facilities with the Family Court of Australia The form in this instance provides a notice to the Respondent that “You must attend the Court for the hearing specified in Box C above”. Box “C” provides “Place of hearing – Melbourne”. No further detail is given. Under Part B of the form paragraph 6 provides “Name of Court and Place”. On this particular document the name of court has been inserted as, “Family Court of Australia”. The “place” is referred to as “Melbourne”. It is noteworthy that the Respondent was arrested in B and escorted by Federal Police to the hearing this day in Melbourne.
A closer examination of the file reveals that by letter dated 11 June 2003 solicitors for the Applicant had written to “The Registrar, Family Court of Australia” asking for the matter to be listed for hearing on or after 30 June 2003 and enclosing in triplicate the appropriate documents for filing. No request had been made for the documents to be issued in the Federal Magistrates Court of Australia. The Application form which was sealed by the Federal Magistrates Court of Australia has had placed over the words “Family Court of Australia at Melbourne” a sticker with the words “Federal Magistrates Service”. These obvious deficiencies could only have added to any confusion or uncertainty on the part of the Respondent. For present purposes it is at least ‘prime facie’ arguable that the application for contravention should be set aside as it is in breach of the Rules and may well be regarded as a nullity. It is a fundamental principle that parties receiving such a significant document should at the very least know precisely the Court and location where attendance is required given the extremely serious consequences that a Warrant of Arrest may be issued for failure to attend the hearing. The final determination of the validity of the process in this application will no doubt be a matter to be determined by the Court at the adjourned hearing on 9 September 2003.
However, in fairness, the Respondent does not rely upon deficiencies in the process but instead relies upon his general state of mind at the time and perhaps his unwillingness to confront further proceedings given the history of the matter and the length of other proceedings which he had faced over the years. In all those circumstances I am satisfied the appropriate order of the court is that upon the undertaking being given this day by the Respondent to appear at the Federal Magistrates Court of Australia at Melbourne on 9 September 2003 at 10 am that he is released from custody. I do not propose requiring him to enter into bail. I accept his undertaking and his promise to attend court on that day.
I note in passing that s.65Q(1)(d) of the Family Law Act 1975 (the Act) provides power to issue a warrant for arrest and requires the Court to be satisfied that the issue of a warrant is “necessary” to ensure that the alleged offender will attend before Court. Presumably the Court found it was necessary in the context of this alleged breach. I am mindful of the general principles that the Respondent should attend Court on the adjourned date and hence sought the undertaking referred to earlier in this judgment. I am also mindful of the obligation of the Court under s.65T of the Act where the Court should without delay proceed to hear and determine the application. As the Applicant did not apparently receive notice under s.65S(1)(b) of the Act that the Respondent had been arrested, it seemed appropriate to me the matter should proceed to be heard on the adjourned hearing date. In any event s.65T of the Act still incorrectly refers to persons being brought before the Court to be dealt with “under s.112AD of the Family Law Act” when of course that section is no longer the appropriate section for contravention of child orders to which Division 13A of Part VII of the Act now applies.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 12 August 2003
0
0
0