Randwick and Anor and Keefe (No. 2)

[2014] FamCA 1068

FAMILY COURT OF AUSTRALIA

RANDWICK AND ANOR & KEEFE (NO. 2) [2014] FamCA 1068

FAMILY LAW – ORDERS – Contravention – Failure by respondent to appear frequently including on bail – Application granted for a further warrant to be issued without bail option.

APPLICANTS: Mr Randwick and Ms Randwick

RESPONDENT: Ms Keefe

FILE NUMBER: MLC 8505 of 2011

DATE DELIVERED: 28 November 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 November 2014

REPRESENTATION

THE APPLICANTS: In person

THE RESPONDENT: No appearance

Orders

1. That the application for contravention filed 4 June 2014 is adjourned to 10.00am on 22 December 2014.

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 (No. 2) 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 31 October 2014 with Ms Keefe (“the mother”) present, I made an order adjourning the contravention application that was originally filed a long time ago but amended and filed on 4 June 2014 to today.  That simple statement belies the problem that has beset this case. 

2. The contravention allegation is that the mother of H (“the child”), who is now eight years of age, is denying the applicants contact to the child, notwithstanding orders that were made by McMillan J on 17 April 2013.  What is most significant about the orders in 2013 was that they were made by consent. 

3. Since the application was issued, there have been orders made by judges of this Court on 8 May, 4 June, 2 July, 6 August, 2 September, 3 October and, as I just mentioned, 31 October.  On 31 October the mother came to Court involuntarily.  She was in the custody of two officers of the Victoria Police.  That arose out of the warrant that I issued by order on 2 September 2014. 

4. The order I made on 31 October 2014 speaks for itself.  In addition to adjourning the contravention application to today, I made an order that the mother attend personally, whether or not she was represented by a lawyer.  And I interpolate here that she told me that day that she was going to get a lawyer.  I made very clear to her that notwithstanding her dissatisfaction with something that the grandparents might have done in relation to the child, she could not simply sit on her hands and allow the orders of 2013 to continue and simply defy them.

5. Whilst the defence of reasonable excuse applies in contraventions in circumstances where someone wishes to protect the health and welfare of a child, I cannot understand why, if that is the issue, an application has not been made to the Court to suspend and/or discharge the extant order. 

6. The plethora of orders that I have mentioned include a number in which warrants for the arrest of the mother were made.  One of those orders was an order that I made back in September requiring the police to arrest the mother and not release her on bail.  It took weeks for the police to execute the arrest and bring her before the court; no doubt a huge inconvenience to the State of Victoria.  But significantly, prior to that date, a warrant had previously been issued for the arrest of the mother under which she had the privilege of being released on bail.  She was arrested and, indeed, was released on bail but failed to attend on the return date of the undertaking of bail that she gave to the Victoria police.  No action has been taken in respect to the failure to attend or the breach of the bail conditions.

7. Today the applicants have attended again as they have ad nauseam, and they see no prospect in having any contact with the child unless some severe action is taken.  Perhaps, sensibly, they have chosen not to proceed with their application for contravention today on the basis that it may still have some consequence for the child if the evidence proceeds unchallenged.  They ask the Court to impose the only serious penalty that the Court can impose in endeavouring to ensure that its orders are complied with.

8. The alternative is to seek another warrant, and whilst that creates enormous inconvenience for the State of Victoria in particular, because they act as agents for the Australian Federal Police, I see very little choice.  However, it seems to me that not only have the paternal grandparents put themselves out because they live in rural Victoria and have made the trip on each occasion, the Court has spent considerable resources that are wasted dealing with this matter, trying to get something resolved. 

9. Under those circumstances, it seems that this time I should not be troubled about inconveniencing the mother and her rights, particularly having regard to what I have said was the message on 31 October 2014. 

10. I am very cognisant of the time of the year and the consequences of the arrest of the mother upon the child, but the grandparents say that they are aware of that problem and would take whatever steps were necessary to protect their granddaughter. 

11. Under those circumstances, it seems to me that it is appropriate in the circumstances pursuant to section 65Q of the Act to issue a warrant for the arrest of the mother to secure her attendance on the return date which I shall fix as 22 December 2014. Further, that the mother is to remain in custody until the return date if she is arrested prior to 22 December 2014. In the usual way, I will give her liberty to apply and I will worry about that problem if that arises.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 November 2014.

Associate: 

Date:  2 December 2014