Sandler & Kerrington
[2007] FamCA 479
•24 May 2007
FAMILY COURT OF AUSTRALIA
| SANDLER & KERRINGTON | [2007] FamCA 479 |
| FAMILY LAW - APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – CONTRAVENTION OF PARENTING ORDERS – VARIATION OF PRIMARY ORDER – Parenting orders made by trial Judge only nine months before contravention hearing – Those orders were that child live with mother and spend time with father - Numerous contravention applications before court – father alleging the mother had committed numerous, and ongoing, breaches of orders that child spend time with the father – alleged that the mother had also contravened various orders about specific matters relating to child – mother did not appear at contravention hearing and her solicitor was granted leave to withdraw – issues were raised as to the mother not being served by special service in relation to contravention applications – Coker FM suspended parenting orders – recovery order issued for Police to take possession of child and deliver into possession of father – it was argued on appeal that Coker FM erred as the father did not apply for a recovery order – Coker FM ordered that, until further order, child to live with father – on appeal, the appellant argued that Coker FM erred in finding on father’s material that alleged contraventions proved on prima facie basis - on appeal, Counsel for mother argued that there was evidence before trial Judge that child would experience trauma if moved from residence with mother – Further, father was not proposing a change of residence for child as an interim order – procedural unfairness – failure to follow Rice and Asplund - appellant sought to adduce further evidence before the court relating to reasons for judgment of trial Judge and expert evidence that was before him – respondent also sought to put further evidence before court |
| Family Law Rules 2004, r 7.03 Family Law Act 1975 (Cth), ss 70NFB(2), s70NFB(2)(c), 70NBA(2)(c), 70NBA, 70NBA(1), 60CC(2), 60CC(2)(1), 60CA, 70NEB(1)(b), 61DA, 64B, 64B(1), 4(1), 64, 67Q, Part VII Division 13A |
Hayman v Hayman (1976) FLC 90-140
Rice v Asplund (1979) FLC 90-725
McManus v McManus (1969) 13 FLR 449
| APPELLANT: | MS SANDLER |
| RESPONDENT: | MR KERRINGTON |
| FILE NUMBER: | TVM | 3112 | of | 2006 |
| APPEAL NUMBER: | NA | 28 | of | 2007 |
| DATE DELIVERED: | 24 May 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | WARNICK J |
| HEARING DATE: | 10 MAY 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 March 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 238 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Brasch |
| SOLICITOR FOR THE APPELLANT: | Emerson Family Law |
| COUNSEL FOR THE RESPONDENT: | Appearing on his own behalf |
Orders
That the appeal be dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Warnick delivered this day will for all publication and reporting purposes be referred to as Sandler & Kerrington.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 28 of 2007
File Number: TVM 3112 of 2006
| MS SANDLER |
Appellant
And
| MR KERRINGTON |
Respondent
REASONS FOR JUDGMENT
Two applications for contravention of parenting orders came before Coker FM on 21 March 2007. Mr Kerrington alleged that Ms Sandler, the mother of their then four year old son Jacob Sandler, had committed numerous breaches of orders that the child have contact with the father, as well as contravened various orders about specific matters relating to the child.
The orders had been made by Jordan J only nine months before, after a hearing of some days. He ordered that the child live with the mother and the father have regular contact, gradually increasing over a period of about nine months, by which time the father was to spend each weekend with the child, as well as half school holidays.
The mother did not appear at the hearing of the contravention applications, but a solicitor who had been acting on her behalf sought and was granted leave to withdraw, because of an absence of instructions. Coker FM then dealt with the father’s applications. In the result, he suspended the orders of Jordan J, directed that a recovery order issue for the Police to take possession of the child and deliver him to the father and that until further order, the child live with the father. The mother lived in P or AB in Far North Queensland. Following the orders, after some difficulties locating the child, the Police took Jacob and after a day or so he was given into the possession of the father, who resided many kilometres away in Northern New South Wales.
These reasons relate to the mother’s appeal against Coker FM’s orders.
The appeal raises several issues, but the central theme is that, in the case before Jordan J, there was evidence about the trauma the child was likely to experience if moved from residence with the mother. It seems that such evidence was not before the Federal Magistrate nor even were the reasons of Jordan J. Further, no notice had been given to the mother that parenting orders as made were sought and indeed there was, in other material filed by the father at a time proximate to the filing of the later of the two contravention applications, some indication that the father was not proposing a change of residence for the child, as an interim measure. Ms Brasch, Counsel for the mother, argues that in such circumstances an order for a change of residence, albeit of an interim nature, should not have been made.
Other points raised were:
(a)that the learned Magistrate should not have proceeded with hearing the contravention applications in circumstances where the mother had not been served by special service;
(b)that the Federal Magistrate erred in finding on the father’s material that all of the alleged contraventions were proved on a prima facie basis; and
(c)that Coker FM erred in making a recovery order when the father did not apply for one.
The mother sought to put further evidence before the court, consisting of the reasons for judgment of His Honour Jordan J and certain expert evidence that had been before him. The father also applied to put further evidence before the Court. Ms Brasch did not oppose the application, but submitted (correctly, in my view) that the material was of no or little significance to the appeal. The evidence related to the process of recovery of the child by the police, a stay application before Coker FM heard on 3 April 2007 and some school attendance records.
Though the notice of appeal stated that all orders were appealed, no grounds or submissions attacked an order for a change of venue and the fixture, for mention of the applications nominated, on 15 June 2007.
I think it convenient to firstly address the two somewhat technical points that relate more to the question of whether a finding of contravention should have been made and secondly to consider any other points with the central issue of whether an order for a change of residence should have been made.
If merit be found in any of the grounds, it will be necessary to consider what, if any, orders this court should make.
That the learned Magistrate should not have proceeded in circumstances where the mother had not been served by special service
By the time the matter came before Coker FM, the father had actually filed three contravention applications, explained by his contention that breaches were on-going. In respect of the latest of these applications, filed only the day before the hearing, the Federal Magistrate found that the mother must not have received it, and he therefore dealt only with the two applications earlier in time.
At the hearing before the Federal Magistrate, the father appeared by video link. Ms H, the solicitor who had been representing the mother, appeared by telephone link.
The transcript does not disclose that at the outset the father identified the applications upon which he wished to proceed, though these were identified after the solicitor for the mother withdrew (but remained listening on the telephone).
Before she “withdrew”, Ms H informed Coker FM of her attempts to receive instructions in respect of “the contraventions”.
After Ms H spoke of her attempts to contact the mother, the Federal Magistrate said:
FEDERAL MAGISTRATE: Obviously, and the matter has been listed and clearly, from what you have said, she was well aware and knew of the listing today, the importance of the appearance, the fact that an appearance was required, et cetera.
MS H: Yes, yes. And I believe we sufficiently informed her of all those requirements. We sent her letters. We sent her emails. We’ve left numerous messages. I can’t do much more than that and I would be grateful too if the Court did excuse me from this matter.
Later, after the mother’s solicitor withdrew, Coker FM said:
…what I intend to do…is to note that the respondent has been served with the contraventions filed on 7 December 2006 and 17 January 2007…
In his reasons, the learned Magistrate said:
10.That is clear, because the solicitor who had been appearing on behalf of the mother has appeared today by telephone and indicated that she is without instructions. She confirmed that there was no appearance at an appointment specifically arranged for 16 March 2007, and that there had been from her office, repeated calls made to the mother without any real response.
11.Additionally, the solicitor on the record at that time for the mother, indicated that other members of her staff had, in a small community such as P, met members of the mother's family and that they were surprised that the mother was not participating in the proceedings nor providing instructions. There was certainly no indication that the mother was ill or unable to participate in any way in the proceedings.
12.It was appropriate, therefore, that Ms H, solicitor for the mother, sought leave to withdraw. She was without instructions, clearly, the matter was listed for trial, and, clearly, the respondent mother knew that the matter was listed for trial.…
Except as appears from these passages of reasons and transcript, Coker FM did not discuss the question of proof of service of those two applications or refer to any relevant rules.
Ms Brasch submits that though the Federal Magistrate Court Rules are silent with respect to the mode of serving contravention applications, Rule 1.05(2) of those rules provides:
However, if in a particular case the rules are insufficient or inappropriate, the court may apply the Federal Court Rules or the Family Law Rules 2004 or the Family Law Rules 1984 in whole or in part and modified or dispensed with, as necessary.
Ms Brasch further submits that thus Rule 7.03 of the Family Law Rules 2004 applies and it provides that a Form 18 Contravention Application must be served by “special service by hand”.
In her written submissions, Ms Brasch acknowledged that the father’s 7 December 2006 application was served (as his affidavit of service deposed) by electronic means on H Lawyers.
On 28 December 2006 H Lawyers filed an address for service for the mother, nominating that they were the “address for service of Notices for all proceedings with the above file number”.
Ms Brasch also acknowledged that the father’s application of 17 January 2007 was served by facsimile to the mother’s solicitors, as the father’s second affidavit of service deposed.
The final written submission made by Ms Brasch on this point was:
In the circumstances, where the mother had not been personally served by hand and where her solicitor informed the court…
We have received a number of email messages from her saying that she did want to answer to the contravention, but I haven’t received any instructions up until when I left the office at 4 o’clock yesterday…
I’m very surprised, to say the least, in relation to the non-communication with me because in the past I found her to be extremely reliable and eager to address the issues that have been raised in this matter…
It was unreasonable, and the learned Federal Magistrate erred and his discretion miscarried in proceeding with the matter on an undefended basis.
The question of the applicable rules was not otherwise explored before me, the father not being legally represented, and understandably focussing on other issues.
However, I do not accept that the Federal Magistrates Court Rules were silent on the manner of service of a contravention application, which I see as included within r 6.06(1) which provides:
(1) Service by hand is required for an application starting a proceeding or a subpoena requiring attendance of a person.…
Relevantly to the issue under discussion, r 6.06(2)(c) provides:
(2) However, service by hand is not required if:
…
…
(c)a lawyer accepts service for a party and subsequently files an address for service.
Further, r 6.06(b) provides:
Nothing in this part affects the power of the Court:
…
(b) to find that a document has been served.…”
Service is but a servant to the requirement of natural justice that a party against whom orders are sought has the opportunity to be heard. I am well satisfied that the Federal Magistrate’s acceptance that that opportunity had been afforded to the mother was open to him.
Finally, in deciding to proceed with the hearing, the learned Magistrate did note the terms of Rule 25B.03:
Failure of respondent to attend
If a respondent fails to attend the hearing of the application in person or by a lawyer, the Court may:
(a)determine the proceedings; or
(b)issue a warrant for the respondent’s arrest to bring the respondent before a court; or
(c)adjourn the application.
That the Federal Magistrate erred in finding on the father’s material that all of the alleged contraventions were proved on a prima facie basis
The written submissions of Ms Brasch were:
29.…
e.The learned Magistrate erred and/or his discretion miscarried and/or it was wholly unreasonable to find the Mother had contravened the Orders as set out in the Father’s application (spanning a period from 9.12.06 – 14.01.07), in circumstances where:
a.The father left Far North Queensland in December 2006 and gave no evidence he attended the Contact Centre after this date, it was then not open to the learned Federal Magistrate to find the mother contravened any Orders past this date.
b.The learned Federal Magistrate did not turn his mind to the availability of the Contact Centre, its availability being a precursor to both the father’s frequency and duration of contact with the child.
30.Little need be added to the terms of these grounds. Suffice to extract the learned Federal Magistrate’s findings as follows (AB 9 L 19-29):
“I accept the evidence in support put by you in relation to the contraventions, there being 27 numbered contraventions as well as four which are numbered (a) to (d) in the printout. …
…
“…those breaches going from 4 November 2006 right through to 14 January 2006 [sic, 2007?].”
31.The father, on his own evidence, deposes:
“6. [I] last made physical contact with the Children’s Contact Centre, M on Sunday 24 December … “(AB 54)
“2. [I] have resided in Far North Queensland over the last 3 months (Act, Nov., December 2006 …” (AB 85)
“7. …I have returned to New South Wales …”
32.Accordingly it was unreasonable or plainly unjust to find the mother had contravened the orders “right through to 14 January 2006 [2007]” (AB 9 L 29)
The affidavit of the father filed 7 December 2006 disclosed that:
4. The Orders state a gradually staged Contact regime for regular and meaningful Contact to occur between the Applicant and the Child at The Children’s Contact Centre in M, Queensland. This was at the request of the Respondent, Ms Sandler.
5. Provisions were made in the Orders that Contact could commence within a 12 month period. Since the Final Orders were made, I have tried repeatedly to communicate and last spoke with the Respondent on 27.09.06 to make suitable contact arrangements.
6. The Respondent again stated clearly that her intentions are for the Child to have no relationship whatsoever with me and also stated that she is taking all steps necessary to ensure that the Child will not have any association with me.
7. With great difficulty and expense to relocate, I secured employment and accommodation within the M region to exercise Final Orders and re-establish the relationship I had with my son.
8. Pursuant to Order (3) and after failing agreement with the Respondent verbally as to when Contact would commence, and subject to induction and availability of the Children’s Contact Centre, M, I served the Respondent in writing with notice to commence Contact (Annexure B, c & D), starting Wednesday 1st November, 2006.
9. The Respondent did make the Child available with 2 hours notice on Wednesday 1st November, 2006. Contact did occur for a 2 hour period (2-4pm) and was very successful. Jacob said that he was looking forward to the next visit.
10. The Respondent, without reasonable excuse, has not made the Child available for Contact on the following dates (Annexure E), or since (See Application). The Respondent has never phoned the Children’s Contact Centre, M, as to her un-availability to meet scheduled times.
11. The Children’s Contact Centre at M (to which the Respondent signed a Contract) has tried to phone the Respondent repeatedly with no success. I have been trying to contact and locate the Respondent daily by telephone and mail with no success.
12.I was advised by the Children’s Contact Centre on the 18.11.06 that they had still not heard from the Respondent and that it was likely, due to the Respondent’s failure to turn up with the Child that the current contract for Contact would effectively cease.
13. I have tried to Contact the Respondent’s last known Solicitor and have been informed that they are no longer acting for the Respondent. The Respondent is not at the address last provided to the Court. Pursuant to Order (7), the Respondent has not informed me of her new address or telephone number.
The father’s affidavit filed 17 January 2007 read in part:
4. The Child, Jacob Sandler, last had contact with the Applicant on the 1st November 2006 at the Children’s Contact Centre, M.
5. The Applicant has not had any contact, or heard of the whereabouts of the Child since the last Application for Contravention.
6. The Applicant last made physical contact with the Children’s Contact Centre, M on Sunday 24 December and at this stage, they had still not heard from, or been in contact with the Respondent and Child.
7. The Applicant filed an Application for a Location Order to this Honourable Court (08.10.07). This has been granted and this matter will be heard on 23.01.07.
8. The Applicant also filed an Application to Subpoena (20.12.06) material such as attendance records, contracts and reports from the Children’s Contact Centre, M. This matter was granted and heard (10.01.07).
Relevantly, Coker FM said:
20.It is, clearly, a case, therefore, where if the matter is to proceed, the allegation or allegations as detailed in the counts to which I have already referred are put and there is no response. Thereafter, it is appropriate to hear any evidence supporting the allegation, and in that regard I note that the father has filed material in relation to this matter in support of the allegations. I am satisfied that there is evidence before the Court upon which a prima facie case can be found of a breach of the orders.
I reject the argument for the mother. In my view it was well open to the learned Magistrate to find the mother in continuing breach of the orders for contact, notwithstanding that the father had left North Queensland and returned to New South Wales.
Finally, both as to the argument under discussion here and the point about service, it may also be of some moment that the orders issued do not record any “conviction” of a contravention or contain any of the orders that “…the court can make” as set out in s 70NFB(2) of the Family Law Act 1975 (Cth) (“the Act”). In other words, in respect of the contravention applications, there are no actual orders to be appealed. As will be discussed in more detail later, the only orders made appear to be by way of variation of parenting orders (apart from the order for change of venue). The subtleties of this situation were not argued.
That the learned Magistrate erred in suspending the order of Jordan J as to the residence of the child with the mother and ordering that, until further order, the child live with the father
Matters relevant to a consideration of this question include:
(a)The reasons of Jordan J.
These were not before Coker FM. As indicated earlier, the mother seeks that I receive them as further evidence. I do so, as I am of the view (later explained) that they ought to have been before Coker FM and, either separately or with other factors, demonstrate that his orders were erroneous.
I do not think the admittance of the Family Reports which were before Jordan J achieves any purpose.
Relevant passages from the reasons of Jordan J include:
47. I am satisfied that the father loves his son and is capable of caring for his son.
48. The father is untested as a single parent.…
49. The mother has always been Jacob's primary caregiver, acknowledging that the father played a very active role in the child's first 12 months. Thereafter, the mother has been largely the sole caregiver. She has successfully raised a healthy, delightful, loveable child, in quite difficult circumstances. Four-year-old Jacob loves his mother. At this time in his life, he is primarily attached to his mother and looks to her to meet all of his physical, emotional and psychological needs. Unfortunately, he has had an absent father for two years. He has to re-learn about the opportunity to look to his father to meet some of his physical, psychological and emotional needs.
50. The expert evidence on the effect of the change of residence is uniform, loud and clear. The experts include the two counsellors, SD and JA, and a psychiatrist, Dr MG. They each tell me that, not only is a change of residence not viable, it would be positively harmful for Jacob.
51. Dr MG said in her report that a change of residence could result in harm being caused to Jacob's normal development. She said that all she could support, given the unfortunate background of this case, would be a gradual reintroduction of Mr Kerrington into Jacob's life.
…
57. Ms SD expressed the view that the prospect of a change of residence for this young boy at this stage of his life, given the background, was akin to kidnapping the child and placing him with a stranger. She also said that, given the circumstances of this case, it was a change of residence that was not appropriate and that a gradual reintroduction between father and son was in the child's best interests.
58. The evidence is compelling and consistent. I am satisfied such evidence comes from three appropriately qualified experts who have each acquired the required degree of knowledge and understanding of this case. This evidence and the reality behind it present insurmountable obstacles to the father's application for residence. One would not remove Jacob from his primary carer and expose him to the trauma and harm identified by the experts unless there were compelling reasons to do so.
59. I find that the child is not at risk in his mother's care and, indeed, to the contrary, she has provided very well for him. I find that she is able to offer Jacob quality parenting with the important support of her mother and family.…
(b)Was there notice to the mother of the (or any) proposals for variation of Jordan J’s orders?
In this regard, it is noteworthy that the form provided for contravention applications (Form 18) contains no provision for “orders sought”. No doubt this is because the question of the appropriate orders upon a contravention being established is very much a matter for the court itself.
However, the Form 18 carries the following notice: “FOR AN APPLICATION ALLEGING CONTRAVENTION OF AN ORDER AFFECTING CHILREN”.
Depending on whether the contravention or a reasonable excuse for the contravention is established and whether the contravention is more serious or less serious, the court may:
▪ vary the primary order;
▪ order you to attend a post-separation parenting program;
▪ compensate for time lost with the child as a result of the breach;
▪ require you to enter into a bond;
▪ order that you pay all or some of the legal costs of the other parties;
▪ order that you pay compensation for reasonable expenses lost as a result of the contravention (eg. airfares);
▪ require you to participate in community service;
▪ order you to pay a fine;
▪ order that you be imprisoned.
In this matter there is an added factor that affects the answer to the question posed. For this reason and because the effect of the notice on the Form 18 was not argued before me, I express no concluded view as to whether the notice removes any question of procedural unfairness if, in the absence of a respondent to a contravention application, a parenting order is varied in a manner of which the respondent has not had notice.
However, I do express concern that in such circumstances a significant change might well constitute a procedural unfairness. Quite apart from that, not hearing evidence from the respondent might well leave a court without adequate material upon which to conclude that a significant change is in a child’s or children’s best interests.
The added factor that exists in this case is that, on 17 January 2007, in addition to the contravention application, the father filed an application for parenting orders (and on 16 January 2007 had served - presumably unsealed - copies). As a final order, he sought that Jacob reside with him. However, among the interim orders that he sought was that:
“The child … temporarily reside with the mother”
The application also sought “Contact (catch up time)”
(c) The Federal Magistrate’s reasons.
Relevant parts of Coker FM’s reasons include:
23.The next step, then, is to consider the appropriate course to follow in relation to the proceedings, including, particularly, whether there is a contravention without reasonable excuse of a less serious nature or of a more serious nature. In that regard, I note the provisions of Subdivision (F) of Part VII Division 13A of the Family Law Act, which is in relation to a contravention without reasonable excuse of a more serious nature.
24.…I find, without hesitation, that the actions in that regard by the mother are of a serious nature and, therefore, find that the contravention is without reasonable excuse and that it is a contravention of a more serious nature.
25.The powers of the Court thereafter are set out in s 70NFB of the Act and provide that the Court is empowered to make a community service order, if such an order is able to be made, to make orders requiring the person to enter into a bond in accordance with s 70NFE or, significantly here, if the current contravention is a contravention of a parenting order in relation to a child, to make further parenting orders that compensates a person for time the person did not spend with the child or the time the child did not live with the person as a result of the current contravention unless it would not be in the best interests of the child concerned, to make that order.
…
27.I am of the view, having referred particularly to the extensive time that has been passed and the father has been precluded from spending time with the child pursuant to the orders of 22 June 2006, that the appropriate order is one in relation to compensatory time, pursuant to the provisions of s 70NFB(2)(c). I intend to make an order that the father have compensatory time with the child commencing immediately and that such time continue until further proceedings might be considered before the Court, including the further contravention proceedings which are now the subject of the contravention, filed on 20 March 2007.
28.More particularly, however, I am mindful of the provisions of Subdivision B of Part VII, Division 13A of the Act, headed “The Court’s Power to Vary A Parenting Order”. Section 70NBA provides:
A Court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a Court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committed a contravention of the primary order and either
(i)the Court does not find that the person committed the contravention of the primary order; or
(ii)the Court finds that a person committed a contravention of the primary order.
29.Quite clearly, the Court has jurisdiction under the Act, and quite clearly, pursuant to the reasons that I have already given, I have found that the mother has committed a contravention of the primary order. What subsection (2) of s 70NBA then provides is that if subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the Court in addition to providing under s 60CA, the best interests of the child as the paramount consideration must, if any of the following considerations is relevant, take that consideration into account.
30.It provides, therefore, that the Court has the power to vary the orders if, for example, there is a finding that it is in the best interests of the child. Quite clearly here, the child has a right to a meaningful relationship with the father. The orders of 22 June 2006 specifically provide that there was an appropriate relationship to be developed between the father and the child and upon the findings that I have made, which are, of course, unchallenged in light of the mother's non attendance, they were breached without reasonable excuse.
31.It is clear, in my view, that the orders should be varied. I have found that it is appropriate that there should be compensatory time spent by the father with the child. However, one is obviously concerned as to what cooperation there might be in relation to either compensatory time or, in fact, future compliance with the terms of the orders, it being clear that the mother has now become aware of at least two sets of contraventions alleged by the father and, more particularly, there are further contraventions alleged.
32.I am satisfied that it is appropriate, therefore, having found that the matter is a breach of a more serious nature, that the mother, whilst not having attended a post separation parenting program, that not having previously been the course to be followed in relation to the matter, has contravened the order and it is not appropriate for there to be further delay in relation to the proceedings.
33.I am satisfied that the only basis, upon the evidence that is currently before the Court, that there can be a proper relationship between this child and the father is for there to be an immediate variation of the orders of the Court in relation to the child. Of course, that gives rise to concerns as to the welfare and the best interests of the child, but just as clearly one of the primary considerations pursuant to s 60CC(2) is the child's right to a meaningful relationship with the father.
34.The mother, on the material before the Court, has wholly failed in her responsibilities in relation to same and one has no confidence that, whilst the orders in their present form remain that such can occur. Accordingly, I intend pursuant to the provisions of s 70NBA(3) of the Act to vary the primary order in the following terms.
…
37.The mother will obviously have the opportunity to be heard, but what needs to be abundantly clear here, and no doubt, will be made clear to her very shortly is the fact that proceedings in the Court and orders of the Court are in every instance to be obeyed and to be categorically obeyed. It is not my mind ever to consider that people can pick and choose the orders that they might or might not comply with.
I think it obvious enough that, while the Federal Magistrate started out with the observation that the matter was one in which compensatory contact was appropriate, for the reasons he then stated, he ultimately made the orders pursuant to the power contained in s 70NBA(1), by way of a variation of the orders of Jordan J.
I observe that the Federal Magistrate clearly anticipated that his order altering the primary residential arrangements for the child was likely, sooner rather than later, to come before the court in circumstances where further consideration of the then appropriate arrangements for the child might be given. In this vein, the Federal Magistrate might well have anticipated that, in terms of the period of time that the child would live with the father, the effect of his order would not differ much from an order for compensatory contact. Further, it seems that he chose the path that he did as the better means of ensuring that the child would be placed in the possession of the father.
However, notwithstanding that the end result might have been achievable within the terms of the Act and principles relating to compensatory contact, in my view the course taken by the Federal Magistrate was affected by error.
In short, in my view, the 2006 amendments to Part VII of the Act (effected by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)) have not had the result that the variation of a parenting order within the hearing of a contravention application may be properly effected in a more summary way than, or upon an enquiry abbreviated more than, is appropriate to an application for variation outside of Division 13A, in which s 70NBA appears.
As I will shortly explain, I consider the enquiry here to have been inadequate.
Prior to the 2006 amendments, from time to time matters came before the court by way of contravention applications and in the hearing of those applications it became apparent that the alleged contraventions substantially arose because of some ambiguity in an order or because some of the order’s terms, in particular for matters such as changeover arrangements or other “mechanics” of contact provisions, were the cause of the difficulty. Often, there was no concurrent application for variation and in any event, the general principle was that the court should deal with the contravention application before dealing with any question of variation of the orders.
The introduction of s 70NBA overcomes these difficulties and it may be that, in many circumstances, amendment to an order can be made in a summary way. But that would be because of the nature of the issue, not the terms of the Act.
In the explanatory memorandum, the following was said in respect of s 70NBA:
“Experience suggests that many contravention applications come to the court because circumstances have changed and the existing orders are no longer appropriate. This provision makes it clear that the court always has the power to vary the order whether it is a matter where a contravention is not established or where there is a serious contravention and the court is making orders imposing criminal type penalties. This flexibility should assist in resolving many applications that come to the courts through contravention applications without the need for separate variation applications to be lodged.
…
This flexibility is appropriate as the dispute about the contravention may highlight the fact that the primary order is no longer suitable due to a change in the child’s circumstances.
…
The best interests of the child remain the paramount consideration in varying an order”.
As stated, s 70NBA appears in Division 13A, which relates to:
Consequences of failure to comply with orders, and other obligations, that affect children.
Further the section is within subdivision B, which relates to:
Court’s power to vary parenting order.
Section 70NBA provides:
(1)A court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
(2)If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a)the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b)there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c)because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3)This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
In my view, that a variation made pursuant to s 70NBA is to be approached no differently to any other application for parenting orders (except for the possible added considerations if ss (2) applies), is apparent from:
Section 60CA Child’s Interests Paramount Consideration in Making a Parenting Order
Section 60CC How a court determines what is in a child’s best interests
Section 61DA Presumption of Equal Shared Parental Responsibility when making parenting orders
Section 64B Meaning of Parenting Orders and related terms. Subsection (1) of s 64B provides:
(1)A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
“Primary Order” as defined in s 4(1) “means an order under this Act affecting children and includes such order as varied”.
Albeit on an interim basis, the order of Coker FM effected a reversal of the arrangements put in place by Jordan J after a hearing but nine months before. No consideration was given to the sufficiency of any change in circumstance justifying that alteration, although the mother’s contraventions clearly constituted a change and Coker FM might be taken to have recognised that.
In Rice and Asplund (1979) FLC 90-725 Evatt CJ, with whom the other members of the Court agreed said:
Counsel for the appellant relied on the case of McManus (1969) 13 FLR 449. In that case the father applied successfully to vary a consent custody order. The Full Court of the Supreme Court of New South Wales allowed the appeal, finding that the judge, Selby J., had given insufficient weight to the earlier decree, and I quote:
``The decision to overturn such decree made with the consent of the father, consent given in the light of the then known circumstances, is one which requires most substantial grounds. A reversal of the decree would require the discharge of a particularly heavy onus on the husband, a criterion not found in the affirmative by his Honour. One would look for new facts and circumstances to be revealed before this onus would be discharged.''
The case of McManus was referred to by the Full Court of the Family Court in the case of Hayman and Hayman (1976) FLC 90-140 at p. 75,680. That case, like the one before us, concerned a custody decision in which a Judge of the Family Court had reversed an earlier custody order made by the Supreme Court. One ground on which the appeal was allowed was that the Family Court Judge did not have regard to the prior decision of the Supreme Court, or to the reasons for that decision. In fact, the Family Court had neither the transcript nor the reasons for that decision before it.
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change in an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of section 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard (emphasis added).
While in paragraph 33 earlier quoted, Coker FM indicated that, set against his conclusion that the only way that there could be a proper relationship between the child and the father was for there to be an immediate variation of the orders, were “…concerns as to the welfare and best interests of the child…”, he did not indicate the paramountcy of those best interests. Indeed, he seems to have satisfied himself that the child’s right to a meaningful relationship with the father overrode such “concerns”. Accordingly, I am not satisfied that the learned Magistrate in fact applied as the “paramount” consideration, the best interests of the child.
Nor did his Honour apply the principles enunciated in Rice and Asplund. Had he done so he would have encountered the powerful conclusions of Jordan J, whereupon the gravity and extent of enquiry necessary before those orders were substantially varied, would have been apparent.
In my view, through these failures, the learned Magistrate fell into appealable error.
I have, as earlier seen, considered that the Federal Magistrate relied upon s 70NBA to vary Jordan J’s orders. I have therefore (and because no relevant arguments were presented) refrained from examining the principles that apply to the making of an order for compensatory contact pursuant to s 70NFB(2)(c), a paragraph sitting rather incongruously with paragraphs relating to what might be considered “coercive” measures.
Finally, I return to the question of procedural fairness to the mother. As seen, contemporaneously with service of the second contravention application, the mother’s solicitor received the father’s application for variation of Jordan J’s orders, in which the father proposed that as an interim arrangement, Jacob continue living with the mother and the father have “catch up” contact.
In my view, in these circumstances, the mother was at liberty to think that she was not at risk in the contravention proceedings of the living arrangements for Jacob being altered.
Accordingly, in the making of the orders that the child live with the father, an injustice occurred.
That Coker FM erred in making a recovery order when the father did not make such an application
The learned Magistrate said:
36.I will grant each party liberty to apply in relation to these proceedings to the Registry in L. The reason for that obviously is that no doubt a recovery order will issue in relation to this matter and I intend to order a recovery order in relation to the arrangements to be made with regard to the child being located and placed in the care of the father pursuant to these orders.
In my view there is no independent error in the making of the recovery order by Coker FM. It was an ancillary order, to enable the order he made in relation to the child’s residential arrangements to be put into effect.
What, if any orders, should this court make?
The orders of Coker FM are:
(1)That the operation of the Orders made in the Family Court of Australia on 22 June 2006 and all other Orders be suspended.
(2)That pursuant to Section 67Q of the Family Law Act 1975 a recovery order issue and warrant issue authorising and directing the Marshall, all officers or agents of the Australian Federal Police and all officers of the police forces of all states and territories of the Commonwealth of Australia to take possession of the child JACOB SANDLER born in 2002 and to deliver the child to the care of the Father MR KERRINGTON forthwith.
(3)That pursuant to Rule 8 of the Federal Magistrates Court rules the venue for the hearing of the application filed on 17 January 2007 and the application for contravention filed 20 March 2007 be changed to the Federal Magistrates Court of Australia in L for mention on 15 June 2007 at 9.30am.
FURTHER IT IS ORDERED UNTIL FURTHER ORDER:
(4)That the child JACOB SANDLER born in 2002 live with the Father and that the Father have sole responsibility in relation to the child’s long term care, welfare and development.
(5)That the Mother spend time with the child at all reasonable times as may be agreed between the parties and failing agreement as may be ordered by a Court of competent jurisdiction.
(6)That both parties be granted liberty to apply to the Registry in L.
Ms Brasch sought that, in the event merit was found in any ground, the orders of Coker FM that related to the residential arrangements for the child be set aside. The effect would be the revival of the Orders of Jordan J.
I am unwilling to do that. Nearly two months ago the child was dramatically, if not traumatically, removed from the mother and placed in the possession of the father. I do not know his reactions to that and the circumstances since but I would not assume it in his best interests to now be abruptly returned to the mother. I do not know the detail of arrangements for his care now. I do not know the detail of the mother’s proposals for care of the child in the short term.
What the best arrangement in the circumstances that have transpired is in my view a matter which requires an urgent investigation at first instance, quite possibly with the assistance of some expert evidence.
As seen, events have overtaken the recovery order and no challenge was made to Order 3.
For these reasons, I would not make any orders contrary to the other orders made by Coker FM.
Conclusion
As an appeal lies against orders, notwithstanding the merit in some of the grounds, because I am satisfied that I should not now make any other orders than those made by Coker FM on 21 March 2007, the appeal will be dismissed.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.
Associate:
Date: 24 May 2007
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