Tothill and Crowther (No 2)

[2016] FamCA 301

FAMILY COURT OF AUSTRALIA

TOTHILL & CROWTHER (NO 2) [2016] FamCA 301

FAMILY LAW – PRACTICE & PROCEDURE – affidavits – where the father seeks to rely upon an affidavit that was filed out of time – where consideration is given to prejudice – where the Court is prepared to rely upon the affidavit for the purposes of the contravention application.

FAMILY LAW – CONTRAVENTION – where the father alleges that the mother did not facilitate handover of the child – where the father seeks an order which would include a term of imprisonment – where various counts are dismissed.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Caballes & Tallant (2014) FLC 93-596
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tate & Tate (2000) FLC 93-047

APPLICANT: Mr Tothill

RESPONDENT: Ms Crowther

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of SA

FILE NUMBER: ADC 4457 of 2013

DATE DELIVERED: 29 April 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 29 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Nicholls Gervasi & Co

COUNSEL FOR THE RESPONDENT: Mr McGinn

SOLICITOR FOR THE RESPONDENT: Ian Charman & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Du Barry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. The father has permission to rely upon the affidavit sworn on 22 April 2016 and the annexures thereto subject of course to any argument in relation to the weight of the material and its admissibility.

2. Items 5, 6 and 8 of the Contravention Application filed by the father on 10 March 2016 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tothill & Crowther (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 ADELAIDE

FILE NUMBER: ADC 4457 of 2013

Mr Tothill

Applicant

And

Ms Crowther

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the attempt to list the matter for final hearing in relation to the Contravention Application filed by the father on 10 March 2016.  The matter came on before me on 14 April 2016, when I heard from counsel and dealt with certain interim matters. 

2. The orders I made on that occasion were that the Contravention Application was to be listed for further hearing for one day before me today and that the father was to file and serve a further affidavit in the contravention proceedings, provided that the same is filed and served by 4.00 pm on Friday 22 April 2016 in relation to SMS messages and emails passing between the parties as referred to in the affidavit of the father filed on 10 March 2016. 

3. The affidavit of the father sworn on 22 April 2016 appears to have been filed and sealed on 22 April 2016 at 4.55 pm, which, according to the rules, would mean that it was indeed not filed within the time and therefore was not possible for it to have been served within the time. 

4. I am told from the bar table that the affidavit was not served upon the mother’s solicitors that day but it was not until Wednesday of this week namely, a couple of days ago that the counsel overcame that difficulty and provided the copy of the affidavit to the mother’s solicitors. 

5. As indicated, however, the affidavit which was already on file dealing with the alleged contraventions referred to numerous messages by way of SMS and email between the father and the mother, and the Court required those documents to be specifically before the Court, because it was a Contravention Application. 

6. I am now being asked to receive the affidavit sworn on 22 April 2016 of the father, notwithstanding that the order was not complied with and that the rules indicate that if the rules and orders of the Court are not complied with, then the document is deemed not to have been filed and should not be before the Court. 

7. However, the rules also provide for the Court to dispense with the provisions of the rules, which would allow the Court to receive the document notwithstanding that it was not filed and served in accordance with the specific order that was made on 14 April 2016.  All of this needs to be seen in the context, as counsel has pointed out, that these are Contravention Applications in relation to what is alleged to have been the mother’s failure to comply with orders which provided for the child to spend time with the father.  These are provisions of the Family Law Act 1975 (Cth) (“the Act”) which clearly relate to what is in the best interests of the child.

8. The orders of the Court relate specifically to orders which provided for the father to spend time with the child and relate to issues which deal with the ongoing obligation of both parents to encourage, where appropriate, an ongoing relationship between the child and each of the parents. 

9. I have been referred to substantial amount of authorities this morning and will not refer to all of them. 

10. The matters of some substance have been dealt with previously in relation to these matters by the Full Court of the Family Court of Australia, including the authority of Tate & Tate (2000) FLC 93-047 and clearly the reference has been given in more recent decisions also to the authorities dealing with the discretion the Court has in relation to the admission of further material. In particular, the authority to which I have been referred is the Full Court of the Family Court of Australia of Caballes & Tallant (2014) FLC 93-596. Kent J’s decision sets out a considerable amount of the history of these types of matters and the authorities in relation to them, including the reference to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 and State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. These are matters which are significant in considering the discretion I have in this case.

11. In particular, I accept the assistance given by Kent J in Caballes & Tallant (supra) and those paragraphs to which I have been specifically referred.  In particular now I am referring to paragraphs 90 onwards of Caballes & Tallant (supra). That was a matter which was an appeal from a Federal Circuit Court Judge and refers to the rules of the Federal Circuit Court, but similar rules apply in relation to the Family Court of Australia. Paragraph 92 has to, therefore, be read in context that can similarly refer to the Family Law Rules 2004 (Cth):

    92.It follows that the application by a Federal Circuit Court judge of r 25B.04 in a contravention application gives ground where necessary, to s 70NBA (the power to vary parenting orders) and Division 12A of the Act. A procedural rule of court does not operate in priority to the mandates of the statute under which jurisdiction is exercised.

12. It must be remembered that the jurisdiction here that is being exercised is the jurisdiction of the Court in relation to matters concerning the child of the parties, and therefore the Court’s decision must bear in mind what is in the best interests of the child. 

13. I continue then to paragraphs 94 and 95 of the decision of Kent J:

    94.Rule 25B.04 of the rules is no more or less than a reflection of the need, in the interests of justice given the prospect of sanction of the respondent, to appropriately protect the respondent’s interests and not cause any prejudice to those interests by the manner in which the application is heard and determined. The severity of the alleged contravention and the consequent potential or severity of imposition of sanctions are obvious considerations. Balanced against that is the need for the Court to apply Division 12A of the Act given that these are “child-related proceedings” with that focus.

    95.In short, in any such case an appropriate balance must be struck between the interests of the respondent on the one hand and the interests of the child or children the subject of the order on the other, in the manner in which the proceedings is heard and determined.  In cases where the alleged contravention is serious (within the meaning of subdivision F of Division 13A) adherence to the procedure laid down in r 25B.04 in determining the application before taking any further steps to deal with the variation under s 70NBA would achieve both objectives.

14. That authority clearly is relevant to the material I have to determine today. What I have to weigh up not only are the rules but the overriding predominance of the Act. The authorities clearly indicate that I have the power to vary the rules and to admit this information but need to weigh carefully in these proceedings, as has been pointed out, particularly because the father is seeking a term of imprisonment be imposed upon the mother. I have to carefully consider the prejudice which the mother might suffer as a result of the Court receiving the affidavit material.

15. The difficulty I have in this regard is that the affidavit material which was not filed in accordance with the order, nor served in accordance with the order, annexes to it correspondence by way of email and SMS between the mother and the father.  Therefore, it is not material which would come as a surprise to the mother or father.  It refers to the paragraphs in the earlier affidavit which drew her attention to those parts of the messages passing between the parties.  When taking into account that the messages are between the father and the mother and that those messages were referred to in the earlier affidavit, I am not satisfied that the prejudice to the mother in relation to that material being accepted is significant. 

16. The provisions, however, do not require that the prejudice be significant but merely that there be a prejudice, which has to be weighed with the benefit to the child and for the Court to determine these proceedings in a manner which is appropriate according to the provisions of the Act. The balance that needs to be struck between the interests of the mother, who is the respondent in this case, and the interests of the child are also heavily weighted towards having the matter resolved rather than further delay.

17. I therefore propose to allow the affidavit filed (technically filed on 23 April 2016) to be relied upon for the purposes of the Contravention Application where it is necessary for that material to be considered in relation to the contraventions. 

18. I have not heard the counsel yet on the numerous objections which are noted concerning the admissibility of the material and the relevance of the material. 

19. I do all of that clearly on the basis that this application for a contravention relating to children’s issues falls within those parts of the Act to which the Evidence Act 1995 (Cth) provisions do not apply. I have yet to hear the counsel on those parts of the material which are to be considered and what weight, if any, I should give the material which would otherwise be inadmissible under the Evidence Act 1995 (Cth) taking into account that these are proceedings in which the serious consequences of a prison term being imposed require the Court to make findings in relation to the facts on the basis that all of the facts to establish the alleged contravention are proved beyond reasonable doubt.

20. I therefore allow the father to rely upon the affidavit sworn on 22 April 2016 and the annexures thereto, subject, of course, to any argument in relation to the weight to be given to the material and/or its admissibility. 

21. I have now received submissions concerning count 6 in the Contravention Application.  That is an application which refers to 20 December 2015.  The time is described as 9.00 am to 4.00 pm and the place is described as Adelaide.  The allegations allege that the mother had made no genuine attempt to facilitate handover of the child to the father to enable the father to have unsupervised time with the child.  The mother remained present for the first 90 minutes of the child’s time with the father, and then concluded the time between the father and the child at 10.30 am, five and a half hours early.  It is alleged that the mother’s conduct contravenes paragraph 3.2 of the order made by me on 9 November 2015. 

22. I have received submissions that there is nothing in the affidavit material now before me which would establish the breach by the mother of the order of 9 November 2015 by her behaviour on 20 December 2015. 

23. The order of 9 November 2015 made by me provided for the father to spend time with the child:

    ...in Adelaide, with handover to take place at the [G Park] Playground as follows:

    …

    3.2. On Sunday, 20 December 2015 from 9 am until 4 pm unsupervised.”

24. Paragraph 7 of the affidavit of the father, filed on 10 March 2016, has a heading “Contravention 20 December 2015” and then proceeds to deal with 24 subparagraphs, all dealing with what happened on 20 December 2015, all of which appears to relate to D Town, and not Adelaide.

25. Taking into account the specific terms of orders of 9 November 2015, the material in the father’s affidavit does not establish any basis upon which I could find that the mother has contravened an order which required the mother to provide the father time with the child in Adelaide, with handovers taking place in Adelaide.  I, therefore, dismiss item 6 of the Contravention Application that being the item which relates to 20 December 2015. 

26. Item 8 of the Contravention Application alleges that the mother breached the order of 9 November 2015, paragraph 2.2, on 30 November 2015.  It then provides details of the mother arriving late, and concluding the time earlier.  The difficulty with that allegation is that the order did not provide for the father to have time with the child on 30 November 2015, but provided for the child to have time with the father on the Sunday, 29 November 2015 not 30 November 2015.

27. The affidavit indicates that the father and mother reached an agreement to change the date to allow the child to attend a birthday party.  The father’s allegation now is that the mother did not comply with that agreement.  That is not a basis upon which the Court can find a contravention of the order taking into account the need to establish the basis of the contravention in the first place, before then considering the consequences. 

28. Therefore, item 8 is also dismissed.

29. I have been asked to make findings in relation to the contravention alleged, item 5, which says in the Contravention Application, 31 January 2016, 9.00 am to 5.00 pm.  D Town is the place.  The statement of the alleged contravention is the “mother failed to facilitate time between the father and child in contravention of paragraph 4 of the order made Dawe J on 9 November 2015.”  The order in paragraph 4 of 9 November 2015 provided:

    ...thereafter, each alternate Sunday, commencing on 17 January 2016 from 9 am until 5 pm, unsupervised, in D Town, with the child to be collected from and returned to the D Town Post Office. 

30. The affidavit material filed in support of the alleged contravention of that order is in paragraph 9 of the affidavit of the father, filed on 10 March 2016.  The heading “31 January 2016” and then, paragraph 9:

    The mother relocated to Adelaide with the child and without my knowledge or consent, in or about mid-January 2016.  The mother, therefore, made no attempt to facilitate my time with [B] on 31 January 2016.

31. I accept that the second sentence of that paragraph is the comment or conclusion asserted by the father, and does not establish the basis upon which he made that conclusion.

32. The first sentence relating to the mother relocating to Adelaide without his knowledge or consent is the part of the factual material which is, therefore, trying to establish the contravention.  Whilst it establishes that the mother relocated with the child to Adelaide, it cannot establish that she failed to provide time with him each alternate weekend, unsupervised, in D Town, because it simply refers to her relocating, and not that she failed to provide the unsupervised time with the child being handed over at the D Town Post Office.

33. Because the matter is a matter dealing with a contravention of children’s orders, and seeking orders which could include (if the father were to obtain what he is asking the Court to do) an imprisonment term for the mother, it is not appropriate to accept paragraph 9 as a basis upon which the mother would be required to respond to an allegation of a contravention of the orders of 9 November 2015.  Therefore I dismiss item number 5.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Daw delivered on 29 April 2016.

Associate: 

Date:  4 May 2016