Randwick and Anor and Keefe

[2014] FamCA 905

FAMILY COURT OF AUSTRALIA

RANDWICK AND ANOR & KEEFE [2014] FamCA 905

FAMILY LAW – ORDERS – Contravention – Fail to appear – Warrant issued.

Family Law Act 1975 (Cth)

APPLICANTS: Mr Randwick and Ms Randwick

RESPONDENT: Ms Keefe

FILE NUMBER: MLC 8505 of 2011

DATE DELIVERED: 2 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 September 2014

REPRESENTATION

THE APPLICANTS: Both in person

THE RESPONDENT: No appearance

Orders

1. That the application for contravention is adjourned to 10.00am on 3 October 2014 in the Judicial Duty List.

2. That pursuant to s 65Q of the Family Law Act 1975 (Cth) a warrant issue for the arrest of MS KEEFE to secure her attendance on the return date.

3. That the said MS KEEFE is to be brought before the Family Court of Australia and not released on bail without further order of this Court.

4. That the mother have liberty to apply on short notice if she desires to be released prior to the said return date.

5. That the reasons this day be transcribed.

6. That a copy of this order be posted by the Registry staff to the mother at Property T and also Property W.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Randwick and Anor & Keefe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8505 of 2011

Mr Randwick and Ms Randwick

Applicant

And

Ms Keefe

Respondent

REASONS FOR JUDGMENT

1. On 17 April 2013 McMillan J made consent orders relating to H (“the child”), who is now eight years of age.  One of those orders was that the child live with her mother and another order was that she spend time with her paternal grandparents on a variety of Sundays.  On 4 June 2014 an amended contravention application was filed after an earlier application was lodged with the Court.  The paternal grandparents brought the contravention application and in the most recent document, alleged that Ms Keefe (“the mother”), without reasonable excuse had refused to allow them to spend time with the child pursuant the orders of McMillan J.

2. For a variety of reasons associated with difficulties of service, the case has limped along for some months.  In June 2014 I was sufficiently satisfied that the contravention application had been brought to the attention of the mother and as she had not attended the hearing, I issued a warrant for her arrest.  The contravention application clearly has attached to it a warning that if a party fails to attend the proceeding, they may be subject to being arrested.  Notwithstanding that notification and the variety of orders, all of which, according to the Court file, have been posted to the mother and the file does not contain any documentation to indicate that they have come back unclaimed, the mother did not appear, hence the warrant for her arrest.

3. The correspondence part of the file shows that subsequent to the order, a warrant was sent to the Australian Federal Police, who in turn referred it to the local police in F Town.  Ironically, a report from the local police said that they were having difficulty executing the warrant, although they believe that the mother was in the house, but she was not responding.  As a consequence, the police sought advice from their superiors as to whether or not the warrant entitled them to break in and arrest the mother.  At various times along the way, subsequent to June, the matter came back before the Court and the dates were extended, but the warrant remained alive.

4. On 16 August 2014 at 6 pm police attended again at the mother’s home and this time found her in attendance and executed the warrant, taking her, presumably, to the police station.  In accordance with the orders that I made, the mother was immediately released upon bail, conditional upon her attending this court on 2 September 2014 at 10 o’clock.  The undertaking of bail indeed says the Federal Circuit Court of Australia at Melbourne, but I do not think anything turns on that, having regard to the fact that it is the same building and indeed, the mother would well have understood that, having been here before.

5. Mr Randwick, the applicant paternal grandfather, has attended today and told me that as a result of what he was told yesterday, his wife did not come, but it appears that the mother has decided not to come either.  What lies behind that is that at approximately 12.32 pm yesterday, from an email address, the following email was sent to the Family Law Courts and also to the paternal grandparents.  The email reads as follows:

   I, [the mother’s full name] of [Property T] 3… will not be attending my scheduled Court appearance to be held on 2/9/14 due to illness.  I have a medical certificate and it can be provided if required.  I apologise for any inconvenience caused.  Regards, [the mother’s full name]

6. The mother has not attended today, nor, on the inquiries that I have had made of the registry staff, has any medical certificate been provided.  One might normally be considerate about someone who is ill, providing they have a medical certificate, but in this case, because there has been a number of hearings, I am reluctant to simply accept that the matter should be adjourned again.  I say that because the police report shows that the warrant that they executed, and indeed, the bail documents support that, the mother was aware of her obligations on 16 August.

7. That is over two weeks ago, and even if she was ill, there has been no indication of any representation, nor any desire to appear and defend the proceedings.  It is not appropriate for a litigant, particularly, a litigant in person, to simply send a message to the Court saying that she would not be attending due to illness and that she would produce a medical certificate if she was required to do so.  There are many ways in which she could have resolved this issue, other than that.  It seems to me that the real problem is that I have no understanding of what the mother is doing, but as this case has been before the Court on a number of occasions in the past and she has not attended, and indeed, she has been arrested once and released on bail, there seems little choice but to take a more draconian approach.

8. That approach would see the mother not only arrested again, but this time without the luxury of being released on bail.  Whilst that might not normally be a problem in the criminal courts of this country, it obviously has a significant difficulty in this Court because this is a dispute about a child.  Indeed, somewhat unusually, a grandchild of the applicants.  I have today, and on a previous occasion, canvassed with the applicants whether, in fact, they want the mother arrested, bearing in mind the consequences of such an order upon the child.  The grandfather has told me from the bar table today that he recently attended a school event and spoke to the child, who made a number of complaints about her mother’s behaviour towards her, so he considers that there is no real risk that the child would be in a difficult position if her mother remained in custody.

9. To the extent that there is a problem, no doubt, as the police will be arresting the mother again, they can assess the welfare position of the child and indeed, if necessary, call in the Department of Human Services to protect the interests of the child.  At this stage, the problem is that this whole Court process is being thwarted by a litigant who has decided that she will do things her way.  In the circumstances, the only order that I can make is to have her brought here involuntarily. 

10. Section 65Q of the Family Law Act provides that if a parenting order provides that a child is to spend time with a person and the Court is satisfied that there are reasonable grounds for believing that a person has contravened the order and there is an application before the Court in relation to that particular person to be dealt with under Division 13A of the Family Law Act 1975 (Cth) (“the Act”) concerning the contravention.

11. The Court has to be satisfied that the issue of a warrant is necessary to ensure the person will attend the Court to be dealt with under Division 13A and then the Court may issue a particular warrant. The difficulty for the mother is that each of the relevant parts of s 65Q(1) seem to be to have been satisfied. In saying that, obviously I do not know whether the mother has a defence to the contravention application, but that is no doubt something that she can tell the Court in due course. The mother clearly understood the obligations to be here today, otherwise she would not have sent the email that she did.

12. What I propose to do is to make an order that she be arrested again, only this time she will remain in custody until she can be brought before this Court. I make that clear so that notwithstanding she is in the country, she cannot be taken before a Justice of the Peace or indeed, before a local Court, even if it is exercising jurisdiction under the Act. I appreciate that is a dramatic step, leaving aside what I have said, because in this case it will inconvenience the state police substantially because, no doubt, they will have to organise transport and indeed, place the mother in the custody of either the state prison authorities, until the Court can hear the matter.

13. Because of the possibility, for example, that she might be arrested on a Friday night, in which case she would remain in custody until the Monday morning, and that may have some significant consequences for the child, I propose to give the mother the opportunity to make an application for leave to be released, but that will be a matter for either me or another judge, and certainly not for any other Court or bail authority. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 September 2014.

Associate: 

Date:  22 October 2014