TRJ and SRJ
[2004] FMCAfam 26
•16 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRJ & SRJ | [2004] FMCAfam 26 |
| FAMILY LAW – Children – contravention application – reasonable excuse. PRACTICE AND PROCEDURE – Contravention application – failure by applicant to set out in the application the particulars of the contravention alleged. Family Law Act 1975 (Cth), ss.70NC; 70NE; 70NEA; 70NF 70NG; 112AC O’Brien (1993)16 Fam LR 723; FLC 92-396 |
| Applicant: | R J T |
| Respondent: | R J S |
| File No: | PAM1334 of 2002 |
| Delivered on: | 16 January 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 22 December 2003 & 13 January 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared in person.
| Solicitor for the Respondent: | Mr Reeve |
| Solicitors for the Respondent: | Marsdens |
ORDERS
In respect of the contravention application filed 2 October 2003:
(a)Count 1 alleging that the respondent has contravened order (16) made by the Family Court of Australia at Parramatta on 9 August 2001 is found proved.
(b)Count 2 is dismissed.
In respect of the contravention application filed 23 October 2003:
(a)Count 1 is dismissed.
(b)Count 2 alleging that the respondent did between 17 and
19 October 2003 contravene order (7) made on 9 August 2001 is found proved.In respect of the contravention application filed on 6 November 2003:
(a)Count 1 is dismissed.
(b)Count 2 alleging that the respondent did between 31 October and 2 November 2003 contravene orders (4) and (7) made on
9 August 2001 is found proved.In respect of the first contravention application filed on 1 December 2003:
(a)Count 1 is dismissed.
(b)Count 2 alleging that the respondent did between 14 and
16 November 2003 contravene orders (4) and (7) made on
9 August 2001 is found proved.In respect of the second contravention application filed on 1 December 2003:
(a)Count 1 is dismissed.
(b)Count 2 alleging that the respondent did between 28 and
30 November 2003 contravene orders (4) and (7) made on
9 August 2001 is found proved.(c)Count 3 is dismissed.
In respect of the contravention application filed on 15 December 2003:
(a)Count 1 is dismissed.
(b)Count 2 alleging that the respondent did between 12 and
14 December 2003 contravene orders (4) and (7) made on
9 August 2001 is found proved.(c)Count 3 is dismissed.
The respondent has not proved that she had a reasonable excuse for the contraventions found proved in orders (1)(a), (2)(b), (3)(b), (4)(b), (5)(b) and (6)(b).
I require a transcript of my reasons for this decision.
UNTIL FURTHER ORDER
Orders (4)(c)(i) and (4)(d) made on 9 August 2001 are suspended.
Pursuant to section 70NG(1)(b) of the Family Law Act the applicant father is to have contact with the child E H T born 6 February 1995:
(a)From 9 am to 5 pm on Saturday 17 January 2004.
(b)From 9 am Saturday 24 January to 6 pm Sunday 25 January 2004.
(c)From 9 am Friday 9 April to 6 pm Sunday 11 April 2004.
(d)From 6 pm Friday 23 April to 6 pm Monday 26 April 2004.
The applicant and the respondent are restrained from bringing the child E into contact with C A S or permitting C A S to make any offensive or denigrating comments in the presence or hearing of the child.
Both the applicant and the respondent are restrained from asking the child E any questions about any event that has occurred or is to occur or is presently occurring in the household of the other party.
The child representative is directed to explain these orders to the child E and to inform her that the applicant father told the Court that he does not wish any order to be made placing the respondent mother in gaol.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1334 of 2002
| R J T |
Applicant
And
| R J S |
Respondent
REASONS FOR JUDGMENT
Application
The matter before the Court involves a number of applications by the father of a little girl called E asking the Court to deal with the mother for a number of contraventions of orders which were made by the Family Court of Australia on the 9th August 2001. Those orders have been registered in this Court and accordingly will be dealt with by this Court just as if they are orders of the Federal Magistrates Court.
The applicant filed a total of six applications on the 2nd and 23rd October, 6th November, two applications on the 1st December and one on the 15th December. They allege contraventions of contact orders on weekends, they also allege contravention of order (16) which provides that each party is to keep the other informed at all times of residential address and telephone number, and they also allege contravention of an order relating to change of the school of the child E from H P to another school.
There was a certain amount of duplication in respect of the contraventions of the orders that were said to have taken place. For instance, the contravention of order (16), the allegation that the mother failed to keep the father informed of her residential address, was quite correctly put to me by Mr Reeve for the mother as a continuing contravention and should be dealt with as one matter rather than six.
Mr T, the applicant, did not disagree with that proposal. There was also some duplication in respect of the allegation relating to changing the school of the child E.
I did, at the conclusion of the applicant's case, make a finding that no prima facie case had been made out and I indicated that I would be dismissing that application.
There was also a contravention of an order that was referred to, one of two, in the text of the father's affidavit in support of his application of the 2nd October relating to contravention of contact orders. I indicated that that matter would be dismissed.
I would add that at this stage a practice that occurs from time to time of applicants merely in an application referring the Court to contents of an affidavit, thereby requiring both the Court and the respondent to read through the text of the affidavit in an effort to endeavour what it was the respondent is alleged to have done or not to have done, is an unsatisfactory procedure. It does not comply with the Rules. No objection was taken once the matter was clarified in respect of the first application and I note that the applicant in his subsequent applications was at pains to complete the application correctly.
The applications which were heard at the one time were accompanied by affidavits not only of the applicant but of a number of other witnesses. I ruled that the evidence of one witness was inadmissible and that person was not required to give evidence. Apart from the applicant, J M M, C A S, B D C and C B R all gave evidence by affidavit and were cross-examined. Another witness on behalf of the applicant, one R G H, gave evidence by affidavit and Mr Reeve for the mother indicated that that witness would not be required for cross-examination. I would comment that the evidence contained in Mrs H's affidavit did not take the applicant's case very far.
The respondent gave evidence by affidavit and the applicant indicated that he did not choose to cross-examine her. She gave oral evidence and the applicant exercised the right not to cross-examine her.
Looking at the applications, there was little argument about the fact that the respondent had not complied with order (16) of the orders made by the Family Court in not providing to the applicant an up-to-date residential address. There was conflicting evidence from the respondent and the applicant's mother as to why this address was not being disclosed, each one saying it was the other one. But the fact remains that the order was not complied with. Mr Reeve for the mother pointed out that the applicant was not without fault in that regard and submitted that in the overall context of these proceedings that this was not the most serious of the allegations brought. I believe there is some force to that submission.
It was this allegation that was repeated throughout all of the applications and as I said, Mr Reeve submitted appropriately that it should be regarded as one breach and not of six and that it was an allegation of a continuing breach. I am satisfied that that is so and as far as the original breach of order (16) is concerned, insofar as it is set out in the application of the 2nd October 2003, I find that allegation proved.
Dealing with the same allegation in the five subsequent applications, my original thought was that that part of the application should be struck out. I do not propose to do that. There is one matter where there was some duplication in the evidence and Mr Reeve submitted during the course of the proceedings that it was analogous to the old plea in the criminal law of autrefois acquit. I am of the belief that the duplicated allegations relating to the order could also be dealt with on the basis of autrefois convict. It is not appropriate to strike them out as the allegation has been found proved in the first application, it should in fact be dismissed in each of the five subsequent ones.
I had indicated at the conclusion of the applicant's case that the allegation which is contained in Count 3 of the second application of the 1st December relating to change of schools and Count 3 of the application of the 15th December which is the same allegation, was not in fact supported on a proper reading of the order. I indicated in respect of Count 3 of the application of the 1st December that I would dismiss that count and accordingly on the basis analogous to autrefois acquit in respect of the application of the 15th December I would dismiss that count as well.
What that leaves the Court is a number of allegations which all relate to the same type of breach that is alleged but on different weekends. That is, that the respondent mother did not make the child E available for contact with the father on that particular weekend. The circumstances are similar in each matter. The allegations relate to the weekends 17th and 19th October 2003, 31st October and 2nd November 2003, 14th and 16th November 2003, 28th and 30th November 2003 and 12th and 14th December 2003. In each case the child was not made available for contact with the father.
The mother has given evidence about that indicating that the child E and to some extent her half sibling L had been distressed by what the mother had said was the father's attitude to the child in questioning her to the extent of interrogating her about matters that took place in the mother's household. I hasten to add that the father denied the concept of interrogating the child and indicated that he would not do that to the child. He did not resile from the fact that he asked E questions. The mother's case was that this child had become so distressed by that she kept asking her mother not to go.
The child had also expressed some distress brought about by comments made about the mother by the mother's brother, C A S. Mr S gave evidence by telephone as he is currently in Queensland. The words that caused the child particular distress were the words said by Mr S who is the child's uncle:
“Your mother is going to freeze in hell and you can tell your mother that she is going to gaol”.
The father's evidence is that he does not approve of those words being used to the child, she is a little girl aged eight, and that this was distressing to her. He certainly denied that he had ever said it, although he did not resile from the fact that in circumstances – but as he said, not in the presence of the child - he has made cynical comments about the mother. The father does not speak directly to the mother at all and has not done so for a number of years. That is his decision, he has his reasons for it, although it would appear to me that the father's decision not to communicate with the mother by speech in that way is not of any benefit to the child and it is regrettable that the father has chosen to act in that way. The father does have dealings with Mr S whose animosity towards the mother who is his own sister, is quite remarkable.
I heard evidence on this point from B D C. B C is the senior Chaplain at the V Christian Church. She gave evidence and was cross-examined. She gave evidence of hearing Craig S use those words complained of about freezing in hell and about the mother going to gaol. She also described Mr S telling a sexist joke which Mr S may find funny. The joke referred to which was allegedly made in the presence of E and her half sister S and also the father was:
Q: Why is it there is only 30 per cent of women in heaven?
A: Because if there was any more it would be called hell.
As I said, Mr S might find that amusing, I have not found any humour in that joke whatsoever. I can only be of the belief that the children, who are female, would have heard from Mr S that he has a denigrating attitude towards women. Misogyny is not particular useful for female children, in my view. But sexist jokes aside, it is the other comments made by Mr S that the child E has found distressing.
Ms C gave evidence of having reprimanded Mr S for use of that particular language, of speaking to the child E about it and reassuring her. Ms C was of the view that use of such language was confusing and frightening for the child. There was a discrepancy between the evidence of Ms C and of Mr S about the number of times that Mr S had used those particular words about the mother. It was Ms C's evidence that Mr S had done so on more than the occasions that Mr S admitted.
I have of course had the advantage of seeing and hearing Ms C as she gave evidence in the witness box. I only heard the evidence of Mr S as he was on the telephone. I would comment that I found the evidence of B D C to be persuasive. My impression of her as a witness was a very positive one, she impressed me as an open and honest person who had a positive and appropriate view towards the child E. Where there is a difference between her evidence and that of Mr S, I prefer the evidence of Ms C.
The mother's view is that all of these things have added up to giving the child E some very negative perceptions of the father. She spoke with some regret of that circumstance. The mother has in fact made application to the Court to vary the orders. She says that whilst she did not make the child available for contact that the distress sustained by the child and the negative attitude that the child has towards the father or had exhibited towards the father, was such that it was having an impact on the child's health. She is not, she says, opposed to the concept of contact between E and the father. She described circumstances whereby there was a meeting between the father and the child at S J P School not long before Christmas. It was the first time the father and child had seen each other for some months and the evidence before me is that it was a positive meeting. The mother described the child as saying to her that it was good to see the father, that he was in a position apparently where he could not ask her questions that she found embarrassing or distressing, and that he therefore related to her in a positive manner and she benefited by seeing him albeit for a short time.
The mother also gave evidence of seeking to arrange contact on Christmas Day. The arrangement was to meet in a park for one hour. The father took the view that that was inappropriate circumstance as there was no shelter in the park and Christmas Day was an extremely hot day and he took the view that it would be oppressive to the child and would not be in her interests. Nevertheless, I am mindful of the fact that the mother did make that offer of contact, which is something that I will take into account.
Mr Reeve in his submissions to the Court asked what more could the mother have done, what more of a reasonable excuse could she have as far as being concerned about the health or safety of the child.
Reasonable excuse is defined but not exclusively defined in section 70NE of the Family Law Act. Subsection (3) refers to a breach of a contact order to protect the health or safety of a child. It says:
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 a person referred to in paragraph (a).
Section 70NF(1)(ba) makes it clear that the respondent has the obligation of proving a reasonable excuse and section 70NEA of the Act provides that the standard of proof in determining whether a person who had contravened an order had a reasonable excuse for contravention is on the balance of probabilities, the civil standard in other words.
I am also mindful of the decision of O'Brien (1993) FLC 92-396. It is a decision of a single Judge of the Family Court, Smithers J, and it deals with the question of reasonable excuse under the old section 112AC which used to be the section which related to reasonable excuse before the relatively recent amendments to the Family Law Act. Of course, the decision in O'Brien (supra) is not binding on this Court as it is a decision of a single judge at first instance. It is however persuasive. It was held in O'Brien that the equivalent section makes it clear that a reasonable excuse in respect of a concern as to the welfare of the child is limited to a belief on reasonable grounds that depriving a person of access, to use the old terminology, pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether in the view of the custodial parent or in the view of the custodial parent on reasonable grounds, that the carrying out of the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of the person including the child.
The requirement on a respondent is certainly from following his Honour's decision in O'Brien, a strong requirement. It is particularly noteworthy that the deprivation of contact as set out in section 70NE(3)(b) is for not longer than was necessary to protect the health or safety of the person referred to, in this case the child.
What happened here was that the mother had unilaterally taken the decision that weekend contact would not occur. The father was aware of it, because there is annexed to the father's affidavits two letters. In each case one was written to the mother's solicitors prior to the contact weekend indicating the father's belief that the mother would not make the child available for contact, and one after contact weekend complaining that the contact had not taken place. I am mindful of the fact that there are proceedings on foot which are to be heard later this year relating to the entire issue of the father's contact with the child and in respect of those proceedings I have made an order under section 68L of the Family Law Act that the child E should be separately represented. Indeed, Mr Mansour from the Legal Aid Commission of New South Wales who appears for the child, is presently in Court today and whilst he has taken no part in the contravention proceedings he will no doubt be playing a significant role in dealing with the substantive matters.
I have considered the mother's actions in the light of her concerns about the stress on the child. I am not satisfied that she has established such a threat to the child's health that a reasonable excuse has been made out. It was not alleged that contact with the father imposed any threat to the child's safety and clearly that is not the case. It may well have been that on a particular weekend that the child was acting up and may have got herself into such a state that the mother may have had grounds for believing that contact at that time was just not going to work. But for a unilateral cessation of contact there needs to be something more than that, particularly as it has gone on for a number of months.
I acknowledge the fact that the father has taken the decision that he will not speak directly to the mother at all. I have indicated that I regard that as regrettable. Nevertheless, the mother needed to make some contact with the father as to the child's attitude. If the father chose to ignore that then clearly there was a need for something further to be done. But I am not satisfied taking all the facts of the case into consideration, that a reasonable excuse has been made out.
What I do now is look at whether there has been found a prior contravention of the primary orders. It appears that there was, back on the 26th June 2002.
It does appear to me that there has been a prior finding. That does not necessarily mean that I deal with the matter under stage 3 rather than stage 2, but it is something that I would take into account.
I have previously found certain contravention matters proved and I have satisfied myself that notwithstanding the evidence that the respondent mother has given that the circumstances in which the child E did not have contact with the applicant father were not sufficient to amount to a reasonable excuse. That does not mean, however, that I have discounted the mother's evidence entirely. Indeed, I have not.
I have considered the evidence of both parties and supporting witnesses and given it the weight that I consider appropriate. Some evidence has been given greater weight than others.
I have had the opportunity of hearing submissions and the submissions have included a submission from Mr Mansour who is the child representative. The matter that I must first consider is that put to me by Mr Reeve that I should deal with the matter under stage 2 of the Parenting Compliance Scheme rather than stage 3. He makes that submission notwithstanding that there was a prior finding of a contravention in the year 2002. In other words, there has been a previous breach of the order. That contravention was dealt with by an order that I made providing for compensatory contact under section 70NG(1)(b) of the Family Law Act. Mr Reeve submits that notwithstanding that prior finding it would still be appropriate to deal with the matter under stage 2 rather than stage 3. Mr Mansour for the child did not consider it appropriate to make any submissions on the penalty but he provided me with some submissions as to what should be the situation in relation to contact between now and when this matter can be heard, it needs to be heard on a final basis, in May of this year. Mr T, the applicant, did not see it as his place to submit to the Court what if any orders should be made by way of penalty. I am aware, however, that it has been his desire throughout these proceedings that contact should resume, that he should have contact with his child. I am also aware and it is a matter that has some significance that during the course of these proceedings the father told the Court in answer to a direct question that he did not wish any order to be made that would place the mother in gaol. This was an issue that had been raised during the proceedings and was an issue that was raised as a result of some fear that the child E has expressed.
I believe that it is important that this fear, which would be most destabilising to a little girl, is a matter that needs to be put to rest and it needs to be put to rest today. I propose, amongst other things, to direct the child representative to make it very clear to E that this Court will not be imposing a gaol sentence on the mother as a result of these proceedings, and that the father has told the Court that he does not wish a gaol sentence to be imposed on the mother.
There are a couple of matters that have been very relevant in these proceedings and they have been canvassed at some length and they are clearly matters that cause E some concern. I note that Mr Mansour for the child has put his strong view that the contact between the father and child should recommence as soon as possible. It has certainly been an issue that there have been some most unfortunate remarks made by the mother's brother from whom she is now estranged, one C A S, about what would happen to the mother to wit, that she would go to prison and that she would freeze in hell. I previously indicated that I had heard evidence from B D C, a chaplain of the church at which the father and Mr S and for that matter, E, attended, expressing her disapproval of those comments and the action which she took to reprimand Mr S for those unfortunate comments and to reassure E in respect of her fears about the mother. I am also mindful of the fact that the father does not approve of statements like that being made to the child or in the presence of the child about her mother.
It is certainly been an issue that the child has expressed some concerns about contact and the unfortunate and unwise remarks by Mr S have to some extent contributed to this child's sense of unrest. What I am concerned about is not only dealing with the contraventions alleged, but to look at what is in the best interests of this child between now and when this matter can be heard on a final basis in May. I do agree that it would be in the best interests of this child for contact with her father to recommence, but there must be some safeguards for her wellbeing.
I would make it quite clear that the best interests of the child is the paramount consideration and if that leads to inconvenience or discomfort on the part of either parent, well then that is a price that will have to be paid.
I will be making orders for contact to recommence which will mean that I will need to suspend parts of the existing orders. I am of the view that there should be some contact commencing as soon as tomorrow, but that there should be some graduation of that contact so that this child can get back into the swing of seeing her father on a regular basis.
As far as Mr S is concerned, I propose to take a somewhat rigid view of his involvement and I propose to make an order restraining the parents from bringing the child into contact with Mr S on an interim period and to restrain the parents from permitting Mr S from making any offensive or denigrating comments in the presence or hearing of the child. This does not mean that E must never see Mr S between now and the final hearing of these proceedings, but it does mean that Mr S should not be a guest in the father's home at any time when contact takes place and that the father must be assiduous if they do meet in a public place such as church, to make sure that Mr S keeps his mouth shut. I have no doubt that B C, whose evidence favourably impressed me, will assist the father in looking after the child's interests. It is important that this child knows that she will not have to deal with difficult or offensive comments by Mr S, certainly in the immediate future.
I also propose to make and order restraining both parents from asking the child any questions about what goes on in the home of the other party, whether it is questions about what has occurred in the past or what is to occur in the future. It seems to me that it would be quite open to loving and responsible parents to speak normally to this child about what is going on in their own lives and in their own home and that whatever happens in the other home that the child is involved in must remain a complete mystery. There must be a very thick curtain drawn and there must be no attempt to question the child in any way about what goes on.
It is my firm belief that this child needs to be reassured of these things before contact resumes. I understand that she is present in the precincts of the Court today. I propose to direct the child representative to explain the orders to E so that he may set her mind at rest about what is to happen.
I think it would be most unfortunate if E and the father were not able to communicate today whilst they are at Court, even though it is somewhat strained circumstances.
I would comment that I am aware that the weekend, 24 - 25 January also includes a public holiday on the Monday but as I note that it is the Monday before school starts back, I consider it more appropriate for there just to be two days contact on that weekend for two reasons: 1) because the mother will need to get the child ready for school, and 2) because this is a graduated program of reintroduction of contact and I believe that one day without overnight contact to three days with two nights overnight contact would initially be too large a step to take and I propose to go gently with this child in getting contact back underway.
It is for these reasons that I make the Orders set out at the commencement of this decision.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 20 January 2004
0
0
0