Venture and Venture (No.3)

[2015] FCCA 3344

FEDERAL CIRCUIT COURT OF AUSTRALIA

VENTURE & VENTURE (No.3) [2015] FCCA 3344

Catchwords:
FAMILY LAW – Children – contravention – contravention of parenting orders – where father claims mother contravened interim parenting orders on three occasions – where one allegation admitted – whether prima facie case established.

Legislation:

Family Law Act 1975 (Cth), ss.69ZV, 70NAC, 70NAE, 70NAF, 70NEF

Federal Circuit Court Rules 2001 (Cth), r.25B.04

Cases cited:
Caballes & Tallant [2014] FamCAFC 112; (2014) FLC 93-596; (2015) 52 Fam LR 125

Applicant: MR VENTURE

Respondent: MS VENTURE

File Number: SYC 433 of 2013

Judgment of: Judge Scarlett

Hearing date: 8 December 2015

Date of Last Submission: 8 December 2015

Delivered at: Sydney

Delivered on: 8 December 2015

REPRESENTATION

Counsel for the Applicant: Ms Spain

Solicitors for the Applicant: Doolan Callaghan Family Lawyers

Counsel for the Respondent: Mr Richards

Solicitors for the Respondent: Byrnes Lawyers

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Sydney Central Family Law

ORDERS

1. The Respondent mother did on 7 June 2015 contravene Order 15.4 made on 19 December 2014 in that she did make a disparaging or derogatory remark about the Applicant in the presence or hearing of the child X.

2. Count 2 of the Application-Contravention filed on 7 July 2015 is dismissed.

3. The Applicant has established a prima facie case that the Respondent has on 12 June 2015 contravened Order 15.1 made on 19 December 2014.

IT IS NOTED that publication of this judgment under the pseudonym Venture & Venture is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 433 of 2013

MR VENTURE

Applicant

And

MS VENTURE

Respondent

REASONS FOR JUDGMENT

1. The proceeding before the Court is an Application by the father alleging that the Respondent mother contravened orders made by this Court on 19 December 2014. 

2. There are three Counts, the first of which alleges that on 7 June 2015 the Respondent, without reasonable excuse, made a disparaging or derogatory remark about the Applicant in the presence or hearing of the child X.  That is said to be a contravention of Order 15.4.  The Respondent has admitted the allegation. 

3. The second Count concerns a further allegation of a breach of Order 15.4, and it alleges that the contravention took place on an unspecified day in May 2015 at a time that is not known to the Applicant, at (omitted), which is the Respondent’s residence.  The allegation is that the Respondent, without reasonable excuse, allowed a third party, Mr M, to make a critical, disparaging or derogatory remark about the Applicant in the presence or hearing of the child X. 

4. The third count relates to an alleged contravention of Order 15.1 and the contravention is said to have taken place on 12 June 2015, at

   
   

   6.45 am, again at the (omitted) property where the Respondent resides, and the alleged contravention is that the Respondent, without reasonable excuse, discussed the proceedings with the child X and passed a message to the Applicant through the child X. 

5. In my view, the alleged contravention should be amended, noting that there is now no reliance on order 15.2, by deleting any reference to passing a message to the Applicant through the child, as that would more properly relate to Order 15.2 than 15.1.

Evidence  

1. The evidence relied on by the Applicant in respect of the two Counts is contained in his affidavit of 23 June 2015, the affidavit of his mother, Ms H, of 26 May 2015 and the affidavit of his father, X, of 26 May 2015. 

2. Those three affidavits are relied on in respect of Count 2:  the allegation of the Respondent allowing a third party to make a critical, disparaging or derogatory remark about the Applicant in the presence or hearing of the child.  The Order which is said to be contravened says (this is order 15.4) :

   Making any critical, disrespectful, disparaging or derogatory remarks about the other parent or any member of the other parent’s family or household to any or all of the children or in the presence or hearing of any or all of the children or allowing any third party to do so, and such order to include verbal, written or electronic means, including email, text message, Facebook and other forms of social media.

3. The specific evidence in respect of Count 2 comes from the three affidavits to which I have previously referred.  The affidavit of the Applicant of 23 June 2015 refers to the alleged contravention at paragraphs 8 through to 13.  The substance of the allegation is that the father was carrying the child into the dining room at his home in (omitted) and stopped to talk to the Applicant's mother, Ms H, who tickled the child and began a conversation.  The child was alleged to have said:

   Nana, Mr M was saying to me that daddy is a liar and that it was his fault my family had broken up.  Mr M said it was my daddy that was hitting my mum and sisters and me and he has taken all mum’s money.

4. There was further conversation, and the child went on to say:

   Mr M.  You know, the man that lives with us.  He said that daddy is lying and he’s being mean to mum and he’s hurting our family.

5. Later on, the Applicant deposed that he heard the child tell a friend of his:

   Mr J, Mr M is saying to me that daddy is a liar and that it’s him hurting our family.

6. That evidence is supported by the affidavit of Ms H at paragraphs 2 through to 9.  At paragraph 4 she reports that the child said the same words about the person Mr M that the Applicant deposed.  At paragraph 5, she also confirms the statement that the child made about Mr M, and those statements of what the child has said were virtually identical. 

7. X, in his affidavit of 26 May 2015, describes the incident, as he became aware of it, at paragraphs 2 to 5 of his affidavit.  In paragraph 3, he confirmed that he heard the child saying to Ms H words to the effect of:

   Nana, Mr M was saying to me that daddy is a liar, that it was his fault our family has broken up.  Mr M said it was my daddy hitting mum and my sisters and me and that he had taken all mum’s money.

8. The evidence, of course, is hearsay in that it was a statement made by a child, but it is well established by section 69ZV of the Family Law Act 1975 (Cth) that hearsay evidence of the statements made by a child are admissible. It is up to the Court to give what weight to those statements the Court thinks appropriate, but of course, when one is deciding whether or not the Applicant has made out a case for the respondent to answer, the Applicant’s case must be taken at its highest, disregarding any considerations favourable to the Respondent.

9. In other words, the evidence must be such that the allegation could be made out to the requisite evidentiary standard, which is the balance of probabilities (Family Law Act 1975, s.70NAF(1)). Counsel for the Respondent has submitted that the evidence is insufficient to reach that standard. Ms Spain of counsel has submitted that there is no evidence that the mother permitted the man Mr M to make those remarks to the child.

10. Against this, Counsel for the Applicant submitted not only, of course, that hearsay evidence from a child is admissible but it is an available inference that the mother was present at the time when those statements are said to have been made by the man Mr M, as it is not in issue that the mother and Mr M were, in fact, living together at the time. 

11. I am not of the view that it is an available inference that the mother was present.  For a person to allow or permit a third party to make critical, disparaging or derogatory remarks about another person in the presence or hearing of a child, there must be some evidence to show that the person did something to allow or did not do something to prevent the person making the derogatory or critical remarks.  There is no evidence that the mother had any awareness that Mr M was making that comments.  There was no evidence that the mother was present at the time those comments were made.  There is no evidence that the mother was actually in the house at the time to hear those comments being made. 

Conclusions on Count 2

1. To my mind, the evidence does not reach a sufficient standard for the Court to be satisfied on the balance of probabilities that the respondent, without reasonable excuse, allowed a third party to make those remarks about the Applicant in the presence or hearing of the child.  Accordingly, there is no case to answer in respect of Count 2 and it will be dismissed.

Count 3

1. I turn now to Count 3.  That is an allegation, as I said, of the contravention of order 15.1 on 12 June 2015, in that the Respondent, without reasonable excuse, discussed the proceedings with the child.  The evidence in support of Count 3 comes from the affidavit of the Applicant.  In particular, paragraphs 14 to 16 inclusive contain the details of the facts alleged.  It is useful, I think, to read those short paragraphs onto the record.  At paragraph 14, the applicant deposed:

   After my morning call with X on 12 June 2015, I was surprised to receive a call back from X.  He said, “Could you pick me up this weekend, because I want to go to the grading next Friday?”  I said, “I can take you.”

2. At 15:

   X replied, “You’re not allowed to…  Mummy said you can’t, and (omitted) wants to come.”

3. 16, the Applicant deposed:

   I could hear Ms Venture prompting X in the background, and X said, “The Court said you can’t.  Mummy said you got given something that said you can’t.”

4. That is the end of the quote and the end of the evidence.  It has been submitted by Counsel for the Respondent that there is no evidence that the mother discussed the proceedings with the child.  Against this, it has been put that the child’s evidence is admissible, and the Court’s attention has been drawn to the words in paragraph 16, where the child is alleged to have said:

   The Court said you can’t.  Mummy said you got given something that said you can’t.

5. The inference about the words that the Applicant “got given something”, I think, can reasonably be taken to indicate a Court order.  The Court, in deciding whether a prima facie case has been made out, takes the Applicant’s case at its highest and disregards any considerations in favour of the Respondent.  I am satisfied that in respect of Count 3, the evidence is such that the Respondent could be found, on the balance of probabilities, to have contravened the order in the way alleged, and in respect of Count 3 I find that a prima facie has been made out. 

6. That now leaves us with Counts 1 and 3, Count 1 to which an admission has been made and Count 3, where I have found a prima facie case.  Following the procedure set out in rule 25B.04, the Court must then inquiry of the Respondent as to how she wishes to respond to those matters.  In effect, she has two options in respect of Count 3.  She has one in respect of Count 1, which she has admitted. 

7. In respect of Count 1, she may wish to assert that she had a reasonable excuse for the contravention.  It is well-established that an Applicant is not required to disprove reasonable excuse. A person who asserts that they have a reasonable excuse must establish that reasonable excuse (Family Law Act 1975, s.70NEA(1)(c)) and must do so on the balance of probabilities (s.70NAF (2)).

8. In respect of Count 3, where there is a prima facie case, the options available to the Respondent are that she can give evidence to deny the allegation or she can seek to assert that she had a reasonable excuse. 

9. In each case, the burden falls on her.  If the Respondent wishes to take those steps, in my view, she ought to be given the opportunity to prepare an affidavit, and she may or may not be required to be cross-examined by Counsel for the Applicant in respect of her evidence.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  14 December 2015