S & D
[2002] FMCAfam 218
•21 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & D | [2002] FMCAfam 218 |
| FAMILY LAW – Contravention application – relationship between the parents – best interests of the children – reasonable excuse – post separation parenting program. Family Law Act 1975, ss. 70NE, 70ND. |
| Applicant: | C K S |
| Respondent: | D R D |
| File No: | NCM2908 of 2002 |
| Delivered on: | 21 June 2002 |
| Delivered at: | Newcastle |
| Hearing Date: | 21 June 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | The Applicant father appeared in person |
| Counsel for the Respondent: | Mr Dwayne |
| Solicitors for the Respondent: | Lea S Solicitors, DX 21402 Raymond Terrace |
ORDERS
The application for contravention of child Order filed on 19 April 2002 is dismissed.
UNTIL FURTHER ORDER:
(a)Order 5 made on 24 May 2001 is suspended; and
(b)The father is to have contact with the child, T K S, born 13 August 1998, for one day per week at Relationships Australia, H, at such times and on such days as nominated by the said Relationships Australia.
The said child, T K S, is to be separately represented in these proceedings, being the application filed by the mother on 10 May 2002 to suspend contact pursuant to s.68L of the Family Law Act and the Legal Aid Commission of NSW is requested to arrange such representation.
I require a transcript of my Reasons for this decision.
The matter is adjourned to Monday, 29 July, for mention, at 10.00 am.
I further order each party must contact Relationships Australia at
87 D Street, H within seven days, arrange an appointment for assessment for suitability for supervised contact, attend the assessment and comply with any appointments for supervised contact and all reasonable rules, directions and requests in Relationships Australia in relation to supervised contact.I further order that each party must pay one half of any reasonable fees of Relationships Australia for supervision of contact as provided under paragraph 2(b) of these Orders.
FEDERAL MAGISTRATES |
NCM2908 of 2002
| C K S |
Applicant
And
| D R D |
Respondent
REASONS FOR JUDGMENT
This is an application by the father to have the mother dealt with by the Court for contravention of Contact Orders made by the Family Court of Australia at N. The Orders were made by consent in the Family Court on 24 May 2001 and are now registered in this Court. The Orders relate to the child of the parties' marriage, a little girl called T, who was born on 13 August 1998. In reply, the mother has brought an application to suspend that contact until the matter can be heard in full and for Final Orders that there should be no contact between the father and the child of the marriage at all.
The parties were married on 2 November 1996. There is only the one child of the marriage, T, although both parties have had children by prior relationships. Their relationship was stormy with a history of separation and reconciliation. Their accounts of the dates differ but it is clear that they have been separated since either 26 February or
10 March 2000. The child has been living with the mother since at least September 2000. On 2 November 2000, the mother took proceedings in the Family Court seeking that the earlier Contact Orders should be suspended. The father had been charged with a sexual assault on her daughter, P. The father was acquitted of those charges.
The current Orders were made by consent in the Family Court on
24 May 2001. On that occasion both the father and the mother were represented by counsel. The child was separately represented by counsel. A family report had been ordered and was completed on
5 March 2001. A copy of that report was tendered in evidence in these proceedings. The Orders provided that the father should have supervised contact for a period of four weeks followed by a period of a further four weeks where the father was to have day time contact only. After the expiry of that time, the father was to have contact on alternate weekends from 2.00 pm Friday to 2.00 pm on Sunday.
The father alleges that contact ceased after 10 March 2002 as a result of a refusal by the mother to allow the father any further contact. The father says that the mother has breached Order 5(c) by not permitting weekend contact on 22 March 2002 and has breached Order 5(f) by not permitting the father to have four consecutive days of contact in April 2002. He further alleged that the mother breached Order 7 by not providing copies of school reports and other documents; Order 8(c) by not providing details of the child's doctor; and Order 11 by not permitting the father to collect the child for contact at N Railway Station. The Court has found that no prima facie case has been made out in respect of those three allegations.
The mother has brought an application that contact should be suspended on an interim basis and that it should cease on a final basis, alleging that the child has made fresh allegations concerning sexual abuse by the father. She says in respect of the contravention proceedings that she has a reasonable excuse for breaching the Contact Orders in order to protect the child from abuse. Section 70NC of the Family Law Act provides that a person is taken to have contravened an Order affecting children if, and only if:
"(a) where the person is bound by the order, he or she has:
(1) intentionally failed to comply with the order; or
(2) made no reasonable attempt to comply with the order."
Section 70ND(b) provides that a Contact Order is taken to include a requirement that people act in accordance with s.65N in relation to the Order. Section 65N(2), for its part, provides as follows:
" A person must not hinder, prevent or interfere with contact. A person must not:
(a) hinder or prevent a person and the child from having contact in accordance with the order; or
(b) interfere with the contact with a person the child is supposed to have with each other under the order."
A person may establish that he or she had a reasonable excuse for contravening an Order pursuant to s.70NE. The standard of proof to be applied in determining whether the person had a reasonable excuse for the contravention is proof on the balance of probabilities (see
s 70NEA). A person may allege that they contravened a Contact Order to protect the health or safety of the child or the person. Section 70NE(3) explains under the heading "Breach of Contact Orders to Protect Health or Safety":
"A person (the respondent) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had under the order if:
(a) the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person, including the respondent or the child; and
(b) the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a)."
What is the situation in this case? The evidence is that the respondent mother reported incidents of sexualised behaviour by the child. This, of course, is not new and, indeed, formed a part of the evidence that was sought to be relied on in the proceedings in the Family Court last year. The situation in this case, however, is that on Saturday,
16 March, which was the weekend after the child had been on contact with the father, the maternal grandmother, H A D, who gave evidence in these proceedings, reports of a statement by the child saying: "Daddy has a big wee-wee like this", and went on to say, "I suck it and it's yuck, Nanna". The grandmother's evidence goes on to refer to statements by the child relating to the performance of oral sex. This occurred on Saturday, 16 March. On Sunday, 17 March, Mrs D reported further statements by the child on that same subject including the comment, "That's what comes out of daddy's wee-wee when I suck it". The grandmother gave evidence that she not only reported these matters to her daughter, ie. the child's mother, but that she, on her own account, reported these matters to the Department of Community Services. She says in her affidavit, and on that evidence was not challenged, "I was so concerned that I reported these events to the Department of Community Services. I believe they recorded my complaints on computer immediately. I believe I made my extreme concern and distress evident to them".
The mother, in her evidence, indicates that on 18 March, the day after the two incidents reported by the grandmother and the day after a report was made to the Department of Community Services, that she says she wrote a letter to the father in the following terms, "Chris, I’m writing to you to inform you that from this point onwards, 18/3/2002, all visitation rights for you to have T have stopped.” Signed, “D D."
She says this letter was mailed to the father's address. The father says he did not receive it. The mother went on to say that she was aware that her mother, ie. Mrs D, had reported the incident to the Department of Community Services and that she, the mother, spoke to the joint investigation team and says in Paragraph 20 of her affidavit, "It was after this incident that I was advised by the joint investigation team from DOCS to terminate contact, which I did."
That, then, is a summary of the mother's case at its highest, going towards her allegation or her statement that there was a reasonable excuse for contact not having taken place on those occasions and also going towards her Application that henceforth there should be no contact between father and child. At this stage, looking at the question of reasonable excuse, it is clear, on the evidence, that contact has not taken place since the last contact weekend in March. That then is a contravention of both Order 5(c) and Order 5(f) of the Orders made by the Family Court in May 2001.
What the Court has to decide is whether this is a reasonable excuse as set out in section 70NE, particularly relating to the issues described in sub-section (3) of section 70NE, a belief on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of the child and was not longer than was necessary to protect the health or safety of the person referred to.
The deprivation of contact commenced, on the mother's evidence, on 18 March after she had written the letter as a result of discussing the matter with the Department of Community Services. The mother consulted a solicitor and the application was brought to suspend the contact in the interim and cease the contact in the final basis. That application was made returnable before this Court on 13 May, being the same return date as the father's Contravention Application. I am of a view that this does bring the mother's actions within the terms of sub-section (3) of section 70NE.
The mother is relying not on the generalised allegations of sexual abuse which were raised in the proceedings before and clearly dealt with by the Orders made by consent on 24 May. There have been tendered to the Court in evidence not only the family report, which relates to those issues, but also a file of the Department of Community Services. The father would argue that this is just a re-run of the earlier allegations. The difference is that there appears to be a fresh allegation of sexual abuse, namely the allegation of oral sex, which was not a feature of the earlier allegations. This is quite clearly disturbing. It was disturbing to the child's grandmother and also disturbing to the mother. Of course, what the mother has said is that the matter was reported without delay to the Department of Community Services and the Department of Community Services, through the joint investigation team, advised the mother to terminate contact.
I am of a belief that a person who makes a report to the appropriate authority, namely the Department of Community Services, relating to child abuse, is entitled to rely on the advice that she receives from that Department, at least in the short run and, as such, it would constitute a belief on reasonable grounds that the action that she took was necessary. The action that she took was the action she was advised to take by the Department.
Has there been an unreasonable delay? If the mother had done nothing other than attend Court on 13 May, she would have, in my opinion, been open to the allegation that she had delayed in these proceedings, but the fact is that she brought an application, supported by affidavit evidence, on the first return date of the Contravention Application. The situation has remained that the matter which came before the Court on 13 May was listed for hearing on a defended basis before this Court on 19 June, just a month after it first appeared. The deprivation of contact, of course, has continued over that period of time.
I am of the belief that that can be classified under s.70NE(3)(b) as not longer than was necessary to protect the health or safety of the child. As such, I find that a reasonable excuse has been established and I am obliged to dismiss the application.
That is not the end of the matter, however, because there is the mother's application to suspend contact pending the final hearing of these proceedings and to have contact cease on a permanent basis. I am of the view that what has been alleged in the mother's case is sufficient to justify the commencement of these proceedings in respect of the Contact Orders which were made on 24 May 2001. It is a fresh incident of what appears to be a fresh type of abuse. Clearly, there will need to be a number of steps taken so that this matter can be heard on a final basis and it would certainly be advisable for the father to obtain legal advice in respect of these matters.
Because of the allegations of abuse in this matter, I am of a belief that it would be appropriate for the child to be separately represented in the forthcoming proceedings. I note that when the matter was before the Family Court in respect of the earlier Residence Application in 2001, that the child was separately represented on that occasion and I am of the belief that I should make such an Order today to bring that representation into effect. Again, it is up to the Legal Aid Commission to decide who should undertake that role. I understand that Mr Bruce Foat, solicitor, acted in the role before though I am of the belief that it is for the Legal Aid Commission to make such a decision, although the parties' legal advisers may wish to communicate with the Legal Aid Commission as to whether or not they believe it is appropriate that Mr Foat should be reappointed; it is a decision up to the Commission, quite frankly.
What about the question of contact and the ongoing Contact Orders? Should the Contact Orders be suspended? Should there be no contact until the matter is resolved? On the one hand, the Court must look at the question of unacceptable risk to the child; on the other hand, the Court must look at the delay that would take place until this matter can be heard to finality. Certainly, the appointment of a child representative would bring about some necessary delay and it may or may not be appropriate for a further family report to be ordered. Again, that is a matter that should be considered once the child is separately represented.
The risk, of course, is that if there is no contact until a final hearing, that the relationship between the child and the father could deteriorate almost to the point of extinguishment. Indeed, if those allegations are not substantiated on a final basis, this would create an injustice to the father and certainly not be in the best interests of the child. At the same time, however, the Court must err on the side of caution when there is evidence of some substance in respect of a child's welfare.
I have had the opportunity of reading carefully the Orders which were made by consent on 24 May 2001 in the Family Court. On that occasion all parties, including the child, were represented by counsel and, indeed, experienced counsel. It is noteworthy that those Orders included a period of supervised contact through using the resources of Relationships Australia at H. I am of a belief that such supervised contact until this matter can be resolved would have the effect of maintaining the contact relationship between father and child on the one hand, but provide circumstances whereby the child were to be protected from any potential harm on the other. I propose to make an Order, therefore, that the Contact Orders of 24 May be suspended but I propose to make an Order that there should be supervised contact through the auspices of Relationships Australia at H.
I would make it clear that in matters of this nature Courts must, on an interlocutory basis, take a conservative view and that the interests of the child must always be put in the forefront and if the Court is to err, it should err on the side of caution.
It would also, and I think this might be a matter for some consideration, bearing in mind the findings that the Court has made today, it may be preferable that the final hearing should be before another Federal Magistrate rather than me, as I have gone through all this material and made certain findings, and it may well be in the interests of justice that the parties might think that the matter should be heard by a Federal Magistrate who had not been involved in these proceedings to date, to ensure that each party could be dealt with impartially. I have, in fact, in these circumstances, actually heard oral evidence and any application that I should perhaps disqualify myself from hearing the final matter is one that I would consider and I can assure the parties, whether they are represented or not represented that, in the circumstances, I would not take it as any personal affront if there was such an application made.
I think it is appropriate, in the circumstances, as I have taken evidence in the proceedings from both sides, I think it would be inappropriate for me to hear the matter on a final basis. I think that the parties are entitled to have the matter heard by someone who has no preconceptions about the matter at all. I propose to have the papers recorded that I will disqualify myself from hearing the matter on a final basis.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.Coutman
Date: 10 July 2002
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