Ramsay & Wade
[2014] FCCA 1431
•8 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAMSAY & WADE | [2014] FCCA 1431 |
| Catchwords: PRACTICE AND PROCEDURE – Procedural fairness – where one party not legally represented – where respondent required to establish reasonable excuse for contravention. |
| Legislation: Family Law Act 1975, ss.70NAC, 70NAE, 70NAF, 70NEA, 70NEB, 70NEC Federal Circuit Court Rules 2001, r.25B.04 |
| Cases cited: Caballes & Tallant [2014] FamCAFC 112 Ramsay & Wade & Anor [2012] FMCAfam 1436 SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 |
| Applicant: | MR RAMSAY |
| Respondent: | MS WADE |
| File Number: | SYC 5648 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 28 April 2014 |
| Date of Last Submission: | 28 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Deo |
| Solicitors for the Applicant: | Marsdens Law Group |
| The Respondent: | In person |
ORDERS
The Respondent mother did on 20 February 2014 contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant father to spend time with the children X and Y in accordance with the Orders.
The Respondent Mother did on 23 February 2014 contravene Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant father to spend time with the children X and Y in accordance with the Orders.
The Respondent Mother did on 27 February 2014 contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant father to spend time with the children X and Y in accordance with the Orders.
The Respondent mother did on 2 March 2014 contravene Order 6(b) made on 19 December as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant father to spend time with the children X and Y in accordance with the Orders.
The Respondent mother did on 6 March 2014 contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant father to spend time with the children X and Y in accordance with the Orders.
The Respondent mother did on 9 March 2014 contravene Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant father to spend time with the children X and Y in accordance with the Orders.
The Respondent mother did on 13 March 2014 contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant father to spend time with the children X and Y in accordance with the Orders.
The Respondent mother did on 16 March 2014 contravene Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant father to spend time with the children X and Y in accordance with the Orders.
The Respondent mother is granted leave to file and serve an affidavit setting out the facts upon which she seeks to rely in support of any contention she may wish to make that she had a reasonable excuse for all or any of the above contraventions within twenty-one (21) days from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Ramsay & Wade is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5648 of 2012
| MR RAMSAY |
Applicant
And
| MS WADE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of the parties’ two children for a finding that his former wife has, on no fewer than eight occasions, contravened interim parenting Orders made by this Court on 19th December 2012 and 7th February 2013. The Mother has denied all eight of the allegations.
A short summary of the Father’s case is that between 20th February and 16th March 2014 the mother has refused to allow him to spend time with the parties’ two children, a boy aged 5 who was born on (omitted) 2008 and a girl aged 3 who was born on (omitted) 2010.
Law and Procedure
The meaning of the word “contravened” in the sense of contravening a court order is defined in s.70NAC of the Family Law Act 1975 (Cth), which says, relevantly:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a)where the person is bound by the order – he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order;
The standard of proof to be applied in determining whether a person has contravened an order is proof on the balance of probabilities (s.70NAF(1)).
If the Court is satisfied that a person has contravened an order, that person may still establish that he or she had a reasonable excuse for the contravention (s.70NEA(1)(c)). Again, the standard of proof to be applied in determining whether the person who contravened the order had a reasonable excuse for doing so is proof on the balance of probabilities (s.70NAF(2)).
The procedure at a hearing of such an application is set out in rule 25B.04:
At the hearing of the application, the Court must:
(a) inform the respondent of the allegation; and
(b)ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c) hear any evidence supporting the allegation; and
(d)ask the respondent to state the response to the allegation; and
(e) determine the proceeding.
It is important for a Court to follow this procedure and inadvisable to depart from it, especially where one or both of the parties is not legally represented. This issue has recently been discussed by the Full Court of the Family Court in Caballes & Tallant[1], where Strickland J held at [17]:
… applications such as these are common, and given their quasi-criminal nature, I consider it important that the process in hearing and determining them be applied appropriately and transparently, and particularly where neither party has legal representation. Shortcuts should not be taken, and where orders are alleged to be contravened within the meaning of s 70NAC of the Act, that needs to be addressed by affording each party procedural fairness.[2]
[1] [2014] FamCAFC 112
[2] [2014] FamCAFC 112 at [17] per Strickland J
The Hearing
The Father was legally represented; the Mother appeared for herself.
The allegations in the Application were put to the Mother and she informed the Court that she denied them all.
The Father relied on his affidavit sworn on 17th March 2014, which was filed on 20th March. The Mother was offered the opportunity to cross-examine the Father on the contents of his affidavit but she chose not to do so. Instead, she made a submission to the Court.
The Mother relied on her affidavit which bears on its face the date of swearing “13/4/14” but was in fact filed on 13th March 2014 in support of a Response to an Application in a Case filed that same day. The Application in a Case and the Response both seek variations of the earlier interim parenting Orders. However, some paragraphs of the affidavit refer to the matters under consideration in the contravention proceedings.
The Father’s solicitor, Ms Deo, did not seek to cross-examine the Mother. She, too, made a submission to the Court.
It can readily be seen that a hearing of allegations of contravention of parenting orders without testing the evidence of the parties by way of cross-examination can have the undesirable result that the Court is unable to make a finding on a disputed factual matter. However, the parties chose to follow that procedure and it may create unfairness to a party to force him or her into the witness box to give oral evidence when the other party does not wish to cross-examine them.
The Father is the Applicant in this matter. He was legally represented. It is up to the Applicant to establish a contravention has occurred before the Respondent should be required to establish whether or not she (in this case) had a reasonable excuse for that contravention.
In those circumstances, noting that there are eight separate allegations, I elected to reserve the Court’s decision. Regrettably, I shortly afterwards fell ill and was unable to attend Court for a period of weeks, which has led to the delay in delivering a decision.
The Allegations
The allegations are contained in eight separate counts. They are framed in a rather unusual manner, in that each one of the eight counts claims that the particular breach alleged is a contravention of five separate Orders:
a)Order 6(a) and 6(b) made on 19th December 2012;
b)Order 2 made on 7th February 2013; and
c)Order 4(a) and 4(b) made on 7th February 2013.
Order 6 was made on 19th December 2012 after an interim hearing[3] and says:
[3] Ramsay & Wade & Anor [2012] FMCAfam 1436
6. The children (Y) and (Z)[4] are to spend time with the Father at the home of the Father’s parents:
[4] The children’s names are not published to preserve their privacy
(a) Each Wednesday from 4:00 pm until 7:30 pm;
(b) Each Sunday from 9:00 am until 11:30 am;
(c) On Christmas Day from 9:00 am until 11:30 am;
(d) On Father’s Day from 9:00 am until 11:30 am; and
(e) At such other times as the parties shall agree.
Order 2 made on 7th February 2013 varied Order 6(a) made on 19th December 2012 provided that:
2. Order 6(a) be varied to each Thursday.
Thus, Order 6(a) as amended provides that:
6. The children Y and Z are to spend time with the Father at the home of the Father’s parents:
(a) Each Thursday from 4:00 pm until 7:30 pm;
Orders 4(a) and 4(b) made on 7 February 2013 provide:
4. During the school terms, when the children are attending classes at (omitted):
(a)Each alternate Sunday from 9.00am to 2.00pm commencing 17 February 2013.
(b)Each alternate Sunday from 4.00pm to 6.30pm commencing 10 February 2013.
Thus, these orders amend Order 6(b) so as to provide that the children are to spend time with their father at the home of the Father’s parents on alternate Sundays during the school term as follows:
a)On the Sunday commencing 17th February 2013 and each alternate Sunday thereafter from 9:00am to 2:00pm; and
b)On the Sunday in the off week commencing 10th February 2013 and each alternate Sunday from 4:00pm to 6:30pm.
Each of the 8 counts in the Application alleges a contravention of the above orders, all at the same place, the (omitted) McDonalds Restaurant, which is the designated venue for changeover between the parties, as set out in Order 6 made on 7th February 2013.
Count 1 claims that at 4:00pm on 20th February 2014 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the children.
The evidence in support of this allegation is contained in paragraphs 23 to 27 of the Father’s affidavit of 17th March 2014.
In paragraph 23 of his affidavit, the Father deposed that on 20th February 2014 he received a text message from the Mother. A hard copy of the text message and his response can be found at Annexure “F” of the affidavit. The Mother’s text message says:
Mr Ramsay I have had contact with police who inform me they are continuing to investigate events that have occurred at change over’s. Until these matters are resolved and the children’s safety is prioritised the children will not be attending visitation.[5]
[5] Affidavit of Mr Ramsay 17.3.2014 Annexure “F”
The Father’s reply was:
You best contact you legal representative because you cannot break the interim family law orders. These orders are above anything else.[6]
[6] Ibid
The Father also deposed that he instructed his solicitors to write to the Mother about her compliance with the Orders, or her failure to do so, on two occasions, 24th February and 7th March 2014. He stated that no response was received from the Mother.
The Father deposed that he did not see the children on Thursday 20th February 2014.
Count 2 claims that at 9:00am on 23rd February 2014 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the children.
The evidence in support of this allegation is contained in the same paragraphs of the Father’s affidavit. He deposed that he did not see the children on Sunday 23rd February 2014.
Counts 3 to 8 inclusive all rely on the same evidence. They allege as follows:
a)Count 3 claims that at 4:00pm on 27th February 2014 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the children.
b)Count 4 claims that at 9:00am on 2nd March 2014 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the children.
c)Count 5 claims that at 4:00pm on 6th March 2014 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the children.
d)Count 6 claims that at 9:00am on 9th March 2014 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the children.
e)Count 7 claims that at 4:00pm on 13th March 2014 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the children.
f)Count 8 claims that at 9:00am on 16th March 2014 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the children.
In paragraph 26 of his affidavit, the Father deposes that he did not see the children on the following dates:
a)Thursday 27th February;
b)Sunday 2nd March;
c)Thursday 6th March;
d)Sunday 9th March;
e)Thursday 13th March; and
f)Sunday 16th March.
The dates that the father quotes are indeed Thursdays and Sundays. The Court record shows that the particular Orders are still in force.
Annexed to the Father’s affidavit is a copy of an Interim Apprehended Domestic Violence Order made on 13th February 2014, requiring the Father to attend at the Camden Local Court on 13th March 2014. The order contains the standard orders:
a)not to assault, molest, harass, threaten or otherwise interfere with the protected person (the Mother);
b)not to engage in any other conduct that intimidates the protected person; and
c)not to stalk the protected person.
There is an additional Order which I will set out in full:
6. The defendant must not approach or contact the protected person(s) by any means whatsoever except through the defendant’s legal representative or as authorised by a current parenting order under the Family Law Act 1975.
It can be seen that the Interim Apprehended Domestic Violence Order does not affect the operation of the current parenting orders.
The Mother made a submission to the Court in which she said that she believed that she did not contravene the Orders. She claimed that the Father had not complied with Order 7(e) made on 19th December 2012 requiring him to undertake chain of custody urinalysis for the purpose of detecting the presence of illicit drugs.
The Mother conceded in her submission that the children had not seen their father since 20th February, and claimed that this was due to the escalating violence that had been in force during changeovers. She referred to the Interim Apprehended Domestic Violence Order made on 13th February and said that the Father had since been charged with intimidation arising out of an incident on Australia Day.
The Mother in her affidavit makes various complaints about the Father and the behaviour of members of his family at changeover, but does not refer specifically to the particular incidents the subject of the allegations.
Conclusions
In my view, the Father has made out a prima facie case in respect of all eight counts. Whilst they are somewhat confusingly drafted in their reference to the Orders, they are not wrong in law. For clarity, I will set out the findings in respect of each count, referring to the correct Orders said to have been contravened.
Dealing with the allegation in Count 1, whilst the failure to allow the Father to spend time with the children on 20th February 2014 can be characterised as a contravention of Order 6(a) made on 19th December 2012 as amended by Order 2 made on 7th February 2013, it is incorrect to describe it as a contravention of Order 6(b) as amended by Order 4 made on 7th February 2013. Order 6(b) only refers to Sundays.
Thus, I find that in Count 1, the Father has made out a prima facie case that the Respondent did at 4:00pm on 20th February 2014 contravene Order 6(a) made on 19th December 2012 as amended by Order 2 made on 7th February 2013 by refusing to allow the Applicant to spend time with the children.
Similarly, in respect of Counts 3, 5 and 7, the Father has made out a prima facie case that the Respondent contravened Order 6(a) of 19th December 2012 as amended by Order 2 of 7th February 2013 at 4:00pm on 27th February, 6th March and 13th March 2014 by refusing to allow the Applicant to spend time with the children.
The allegations in Counts 2, 4, 6 and 8 all relate to a refusal by the Mother to allow the Father to spend time with the children on a Sunday. Clearly, Order 6(a) of 19th December 2012 cannot apply, because, as amended by Order 2 of 7th February 2013, the time for the Father to spend time with the children is specified as a Thursday.
The orders that do apply are Order 6(b) made on 19th December 2012, as amended by Order 4(b) made on 7th February 2013. Order 4(b) cannot apply as it refers to spending time with the children on alternate Sundays from 4:00pm to 6:30 pm.
The Father has made out a prima facie case in respect of Counts 2, 4, 6 and 8 that the Respondent contravened Order 6(b) of 19th December 2012 as amended by Order 4(a) of 7 February 2013 at 9:00am on 23rd February, 2nd March, 9th March and 16th March 2014 by refusing to allow the Applicant to spend time with the children.
The Mother’s affidavit does not contain any evidence that would contradict those allegations and she has not provided any other evidence. A submission that the Father has not complied, or complied fully, with another order, does not go any way towards disproving the Father’s case.
I am satisfied that the Father has proved on the balance of probabilities that the Mother has contravened the Orders as set out in Counts 1 to 8 inclusive.
It does not end there, however.
Whether the Resp0ndent has a Reasonable Excuse for the Contraventions
Subsection 70NEA(1) provides that Subdivision E of Division 13A applies if:
a)A primary order has been made;
b)A Court having jurisdiction under the Act is satisfied that a person (i.e. the Respondent) has committed a contravention of the primary order;
c)The person does not prove that he or she had a reasonable excuse for the contravention; and
d)either subsection (2) or (3) applies.
What s.70NEA(1)(c) requires is that the person found to have contravened the order must prove that he or she had a reasonable excuse for the contravention. It is not incumbent on the Applicant to disprove reasonable excuse; the Respondent is required to prove it. The standard of proof to be applied is proof on the balance of probabilities (s. 70NAF(2)).
Section 70NAE sets out what a reasonable excuse for a contravention may be, without being an exhaustive definition. Subsections 70NAE(2) and (4) to (7) set out what is a reasonable excuse.
Subsection 70NAE(2) provides that it is a reasonable excuse 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 that was bound by it; and
b)The court is satisfied that the respondent ought to be excused in respect of the contravention.
Subsection 70NAE(4) is not relevant to the circumstances of this case.
Subsection 70NAE(5) is relevant to the circumstances of this case and provides that:
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 and safety of a person (including the respondent 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).
Subsections 70NEA(6) and (7) do not appear to apply in the circumstances of the case.
In my view, if the Mother, who is not represented, wishes to establish that she has a reasonable excuse for the contraventions, she must not only be given an opportunity to do so, she must be given the information to enable her to present evidence of a reasonable excuse in a way that can be accepted by the Court.
It will not do for the mother to be left with the impression that she can establish a reasonable on the balance of probabilities by making a submission from the Bar table. It will be necessary to give evidence on affidavit and she may be subject to cross-examination on the contents of the affidavit.
This issue was considered by the Full Court of the Federal Court in SZRUR v Minister for Immigration and Border Protection[7], which was an appeal from the Federal Circuit Court in its general federal jurisdiction. The appellant, as applicant at first instance, had made submissions from the Bar table about certain facts which would have supported his claim that a fraud had been perpetrated upon him and, through him, the Refugee Review Tribunal. The trial judge had not considered his claim from the Bar table as evidence towards establishing the fraud.
[7] [2013] FCAFC 146
The Full Court held that the primary judge had not explained the necessary procedure to the appellant, who was self-represented and who was unable to speak or write English. The Court held that the failure of the primary judge to explain the procedure to the appellant was not fair and could have affected the outcome.
In his judgment, Robertson J, with whom Allsop CJ agreed, dealt with the tension between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties by stating at [39]:
I see no difficulty as a matter of fairness in the primary judge telling the appellant that if he wanted the Court to rely on his statements from the bar table it was necessary for the appellant to go into the witness box and make those statements formally after having been sworn. It is not at all clear that the appellant understood that procedure without having it explained to him.
His Honour went on to say at [40]:
I do not accept that such an explanation of the procedure would have run the risk of the Court being seen to advise the appellant. An explanation of the procedure could have been given while leaving it open to the appellant to choose whether or not to give evidence as opposed to speaking from the bar table.
In my view, procedural fairness to an unrepresented respondent in contravention proceedings requires that:
a)The respondent understands that she has the right to bring evidence to establish that she had a reasonable excuse for the contraventions that have been found;
b)The respondent understands what the law means by a reasonable excuse in the circumstances; and
c)The respondent understands the procedure necessary to bring evidence before the Court that will go towards establishing a reasonable excuse, should she choose to do so.
The Mother in this case is obviously able to speak, read and write English, but she is not legally represented. Clearly, it would be of assistance if she were to obtain legal representation, even at this late stage. However, that may not be possible.
What the Mother needs to be made aware of is that if she wishes to establish that she had a reasonable excuse for the contraventions, then it is up to her to bring evidence in admissible form to establish that reasonable excuse. Evidence in this Court is given by affidavit, and if the Mother wishes to lead evidence on this issue, she will need to file and serve an affidavit setting out the facts that go towards establishing that she had a reasonable excuse for the contraventions.
The Mother needs to be aware that, if she chooses to file and serve an affidavit to establish that she had a reasonable excuse, it is quite likely that the Father’s solicitor may seek to cross-examine her on that evidence.
The Mother also needs to be aware of the consequences that may flow from a finding that she contravened the primary orders without a reasonable excuse.
Section 70NEB empowers the Court to do any or all of the following:
a)make an order requiring her to attend a post-separation parenting program;
b)make a further parenting order that compensates the father for time that he did not spend with the children;
c)adjourn the proceedings to allow either or both of the parties to apply for a further parenting order;
d)make an order requiring her to enter into a bond in accordance with section 70NEC; OR
e)make an order that she should pay some or all of the father’s costs of the proceedings.
Procedural fairness requires that the Respondent mother be made aware of:
a)her right to seek to establish that she had a reasonable excuse for the contraventions;
b)the procedure required to bring evidence before the Court; and
c)the consequences that may flow if she fails to establish that she had a reasonable excuse for the contraventions.
I propose to find that the Applicant has established eight contraventions of the primary orders. I also propose to grant the Respondent leave to file and serve an affidavit setting out the facts upon which she seeks to rely if she wishes to establish that she had a reasonable excuse for the contraventions.
I will adjourn the proceedings to a suitable date for further hearing.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 8 July 2014
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