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Contravention of Orders

Hi Everyone,

The Mother of my child keeps contravening contact orders.

I spend 2 hours each Saturday with my daughter at a contact centre.

In the last 9 months my child had been absent from contact on 13 occasions.

The Mother has been late to contact on 20 occasions.

The Final Hearing is likely to take place in September 2008 - no date has been set.

I plan to file an Application for Contravention this week.

My question is this - can I subpoena the contact centres records for the contravention hearing?

If so, do I need leave, or do I just file it with the Application?

4MYDAUGHTER
You can and you should subpoena the records. You may need them to establish a prima facie case, (that no visit took place). That will probably be admitted by your ex, but if not, the records should put it beyond doubt.

The records may not help with the second part, ie the reasonable excuse. Unless the ex has said something to the CC staff about her reason for not attending, chances are the records will only record the fact of the no-show, not the reason.

I'm sure you are on top of it, but remember this application must be personally served (even if she has a lawyer on record), and check recent case law. 2 good recent decisions from Warnick J in Brisbane.See Childers & Leslie [2008] FamCAFC 5 (18 January 2008) see also Oxley and Inglis.

Childers and Leslie is useful to argue against the contravening parent who seeks to rely on "they weren't well"  excuse.

Good luck.
Do not "waste" subpoena's. In family law you get three.

As you are a party to the attendance at the centre, you should be entitled to them under freedom of information. Ask the centre.

Sometimes a nominal fee of $20 - $30 is required for handling, but it saves a subpoena.

You should apply for them now and attach them to your affidavit if possible.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Thanks for the advice guys.

9 subpoena have already been served and produced - one of which was the Contact Centre records. This was produced in November last year.

For the final hearing, I have requested that these same records be subpoenaed again so I can obtain updated information.
There have been a further 15 subpoenas requested for the Final hearing. The Judge has a fair amount of discretion here. As long as its all relevant. The court has yet to grant leave to file.

The contact centre has taken very detailed notes - including the reasons given by the Mother for my daughters absence. And yes, the reason usually given is that she is unwell. One doctor has refused to treat my daughter because she felt the Mother mislead her into issuing 2 x one month long medical certificates. (I have this in writing from the doctor after my GP had a quite word with her doctor and I have already have my child's patient notes which were produced under subpoena in November 2007.

The contact centre has even been recording what my daughter says to me during contact (which is pointing to significant 'alignment' issues developing here).

My 3 year old tells me everything that is said about me by the Maternal Grandparents and Mother - all spontaneously without any prompting and I must say that it makes me sad that they are involving her in all this.

It's all good. I am BIG on acquiring solid evidence. And I never make allegations unless I can verify it from at least 2 independent reliable sources.

What you didn't tell me Artemis was whether or not I need to seek leave first before filing the subpoena? Do you know?

Also, can I serve the Mother the application by fax?

P.S. - As a result of the Mothers behaviour, the Contact Centre is rewriting their Contact Agreement which is signed by both parents at enrolment. They started drafting a new agreement on Saturday while I was there with my daughter after the Mother arrived 45 minutes. The 'penalties' in the old agreement only related to the non-resident parent.

Its interesting but the centre staff are more sick of the behaviour than I am!

4MYDAUGHTER
No leave required, and NO service by ANY means other than personal service.
I can see some problems here.  Always be cautious when taking advice.

When in doubt, best to check the rules. Subpoenas under 15.3. The limit of 3 is for interim proceedings. If you are an SLR you need leave, but in my experience a letter accompanying the filing of the subpoena showing what you hope to find (ie that you are not just fishing) will do it. You might mention it is an update to an earlier subpoena.

About personal service see rule 7.03.

Cheers

Subpoenas

Subpoena: Information for a person requesting the issue of subpoena

Description

This brochure is for people who want a court to issue a subpoena. It provides information about, the use of and compliance with, subpoenas in the Family Court and the Federal Magistrates Court.

Download Subpoena Brochure: PDF - File Size 89 KB  -  Word - File Size 60 KB

What is a subpoena?

A subpoena is a legal document issued by a court at the request of a party to a case. A subpoena compels a person to produce documents or give evidence at a hearing or trial.
There are three types of subpoena:

- a subpoena for production

- a subpoena to give evidence, and

- a subpoena for production and to give evidence.

You can request a subpoena if a person refuses to give evidence or provide documents to a court, or is unable, of their own free will, to do so.

Before you request a subpoena, you should make all attempts to get the required document or evidence. This may include asking the person to provide the document to you or prepare an affidavit in support of your case.
How do you apply for a subpoena?

In the Family Court, you need to complete the form titled Subpoena. In the Federal Magistrates Court, you will need to complete the form titled Subpoena.

Unless a court orders otherwise, a subpoena must not be served on a person under 18 years of age.

In some situations, you will need to prepare a letter to support your request for a subpoena. For example, where there are less than seven days before the court hearing date or where the request is made by a self-represented litigant.

FAMILY COURT
As a general rule, a party can only request a subpoena:
after the hearing date has been fixed in a case for interim or procedural orders, an application
      for divorce, an application for contravention or contempt or an appeal application, or

after the trial notice has been issued in a case for final orders.

A subpoena will not be issued:
for a self-represented litigant, unless a registrar has given prior approval

for a party seeking production of a document or thing in the custody of another court (see Rule
15.34 of the Family Law Rules 2004), or

before the issue of a trial notice, for a party seeking final orders, unless the judge or registrar
      orders otherwise

for a party in a case listed for a hearing conducted as a less adversarial trial pursuant to Division 12A of the Family Law Act 1975, unless the judge orders otherwise.

A party can only request three subpoenas for the hearing of:
an application for interim or procedural orders

a child support application or appeal, and

a maintenance application.

FEDERAL MAGISTRATES COURT
Unless a federal magistrate orders otherwise, a party must not request the issue of more than five
subpoenas in a case.

Information for the person requesting a subpoena

STEP 1 Complete the subpoena
When completing the subpoena, keep in mind that:
A subpoena must identify the person to whom it is directed by name or by description or office or position (the named person). If you wish to subpoena an organisation, the subpoena should be directed to a person authorised to act on behalf of the organisation, for example:

The Officer

XYZ Pty Ltd

Some Street

Some Town NSW 0000

A subpoena may be directed to two or more persons if the subpoena is to give evidence only or if the subpoena requires the production of the same documents from each named person.

A subpoena for production must identify the specific document or thing to be produced. The document or thing should be properly described so the named person knows what to produce.
A subpoena must always require the production of a document or thing which already exists; that is, it cannot require a person/organisation to create a document to comply with the subpoena.

A subpoena cannot be written in a way that requires the person/organisation to form a conclusion as to whether a document or thing is relevant. For example, the subpoena should not ask for 'all documents relating to any account held by the wife/husband in a false name'.

STEP 2 File the subpoena
Once you have completed the subpoena, you need to file it at a family law registry.

You will need to file the original and at least two copies. The Court keeps the original subpoena. The first copy is sealed (stamped) and must then be served on the person or organisation being subpoenaed. The second copy is for you.

If it is a subpoena for production, you will need enough copies to make sure that there is a copy for service on each other party, including the independent children's lawyer (if appointed).

STEP 3 Serve the subpoena
As the person who requested the subpoena to be issued, you must arrange for the subpoena to
be personally handed to the named person. You should give the named person as much notice
as possible of the hearing or trial date.

If the subpoena is not served personally, the named person is not required to comply with
the subpoena.

At the time of service of a subpoena, the following must also be served:
conduct money (page 3)

if a subpoena for production - a copy of the brochure 'Subpoena - information for
named person (served with a subpoena)'*, and

a written notice if you seek to inspect and copy without the need to attend the court
date (see the notice on page 5)*.

·  Family Court only.

FAMILY COURT

Subpoena for production only

In some cases, all parties and the independent children's lawyer (if appointed) may be automatically permitted to inspect and copy any documents produced under a subpoena without the need to attend on the court date. This situation can only occur if:
The subpoena is issued more than 21 days before the court date.

The named person, all parties and the independent children's lawyer (if appointed) are served with:

~ the subpoena, and
~ a written notice* that the person requesting the subpoena intends to rely on this provision, at least 21 days before the court date.

You file an affidavit of such service, at least seven days before the court date.

The named person produces the documents more than seven days before the court date and does not object to any party inspecting or copying the documents.

No party or independent children's lawyer (if appointed) objects to any party inspecting or copying the documents by 10 days prior to the court date.

If a person objects to the inspection or copying of the documents that person and the party issuing the subpoena must attend the court date. At the court hearing the judge or registrar to decide whether to allow inspection or copying.

* You may use the notice on page 5.

FEDERAL MAGISTRATES COURT
A subpoena requiring production only may be made returnable to court at a time fixed by the Court. A subpoena requiring attendance of a person must be made returnable to court when the case is listed for a hearing.

CONDUCT MONEY AND WITNESS FEES
You are required to pay conduct money to the named person. If you do not provide this money, the named person is not required to comply with the subpoena. For a subpoena for production, you must give the named person:
■         Conduct money sufficient to meet the reasonable expenses of complying with the subpoena. For example, the cost of identifying, copying and collating the documents required. This will be at least the minimum amount of $10 or such other sum as agreed or ordered.

For a subpoena to give evidence or a subpoena to give evidence and produce documents, the conduct money covers:
■         Return travel by public transport from the person's place of work or residence to court, and

■         A reasonable allowance for accommodation and meals during the estimated time of personal attendance at the hearing or trial.

You must also pay witness fees for each person you subpoena to attend court, as follows:
■         All witnesses: $75 for each day, or part of a day, that the person is absent from their place of employment or residence, in order to meet the requirements of your subpoena.

■         Expert witnesses: such further amount as agreed or the Court allows.

Note - If a person incurs a substantial loss or expense greater than the set conduct money or witness fee, a court may order that the issuing party reimburse these expenses.

Return of exhibits and documents that are produced
The registry manager must return a document produced in compliance with a subpoena to the named person:
■           not less than 42 days after the order finally determining the application or appeal, or

■         earlier, provided that seven days written notice has been given to the party who filed the subpoena of the intention to return the document (this is only for documents that have not been tendered into evidence at a court hearing or trial).

DOES A PERSON HAVE TO COMPLY WITH A SUBPOENA?

Yes, a person must comply with a subpoena unless:
the subpoena was not served on the person by hand, or

conduct money was not provided.

If a person does not comply with a subpoena, a court may:
issue a warrant for the person's arrest, and/or

order them to pay any costs caused by the noncompliance.

A court may also find the person guilty of contempt of court.

CAN A PERSON OBJECT TO PRODUCING A DOCUMENT?
Yes, a person can object to the production of documents required by a subpoena for reasons such as:
the documents requested are irrelevant

the documents are privileged (for example, documents which came into existence as a result of
a lawyer/client relationship), or

the terms of the subpoena are too broad.

In this case, a party or a person (named or affected by a subpoena) may seek an order that a subpoena be set aside in whole or in part.

HOW LONG DOES A SUBPOENA REMAIN IN FORCE?

A subpoena remains in force until the first of the following events occurs:
the person complies with the subpoena

the issuing party or a court release the person from the obligation to comply with the subpoena, or
the hearing or trial is concluded.

ARE THERE ANY RESTRICTIONS IN USING A SUBPOENAED DOCUMENT?
A person must only use documents obtained by subpoena for the purposes of the case and must not disclose the contents or give a copy of a document to any other person without the permission of a court.

The rules

In the Family Court, the rules covering subpoenas are set out under Part 15.3, Division 15.3.1 of the Family Law Rules 2004.
In the Federal Magistrates Court, the rules covering subpoenas are set out under Part 15, Division 15.3 of the Federal Magistrates Court Rules 2001.

Notice to the named person

For production of documents in the Family Court only

To                                                                                

(print name of person being subpoenaed)

With this notice you have been served with a subpoena to produce documents. If:
1.       you comply with the subpoena and lodge the documents required by the subpoena at the

Court specified in the subpoena at least seven days before the court date, and

2.       you do not object to a party or independent children's lawyer inspecting or copying the document, and

3.       no other party or person objects to the document being inspected and copied by the parties or the independent children's lawyer then,

each party and the independent children's lawyer is entitled, without a court order, to inspect and take copies of the documents from seven days before the court date until the documents are returned to you, destroyed or the Court orders otherwise.

A person who inspects or copies the document must:
a) use the document for the purpose of the case only, and

b) not disclose the contents of the document or give a copy of it to any other person without
permission of the Court.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
Rules 15.18 & 15.34 seem to contradict with respect to the issuing of subpoena to produce documents from other courts.

My apologises, I cannot cut and paste from the rules at this moment because my newly installed printer software wants to print the copied area!

Rule 15.18 prohibits the issuing of subpoena to courts. Rule 15.34 seems to provide the exception.

I think the distinction made here is that a document can only be Subpoenaed from a court if it is specified (i.e. name of doc, dated, etc.)

It appears that the rules prevent a party from 'fishing' for documents.

I'd be interested to hear feedback on this.

The Mother has requested subpoena to be issued for the production of non-specified documents held by two courts. I have opposed the subpoena on Rule 15.18 grounds.

We will get a ruling on this from Moore J in several weeks.

4MYDAUGHTER
Although it might seem so, it's not tricky.

Any document in possession of another court (eg. a Local Court file) is requested by letter not by subpoena.

The requests comes from the Registrar.

You (or the other party) write to the Registrar of the court you are in, and they write to the Reg of the other court.
Testing-One-Two…

The records may not help with the second part, ie the reasonable excuse. Unless the ex has said something to the CC staff about her reason for not attending, chances are the records will only record the fact of the no-show, not the reason.
  The contact centre have, in the last two months in particular, noted the reasons provide by the Mother for nonattendance or lateness.

Given that a contravention hearing is conducted under a 'criminal standard of proof' (as opposed to a 'standard' or 'civil' standard), would I need to subpoena the staff member, who recorded the Mothers reasons, to give evidence as a witness? Or is it sufficient to rely on the contact notes only? Would the contact notes lend sufficient weight to prove my case?

4MYDAUGHTER
This is a bit tricky to explain.

Yes, it is best to subpeona them to give evidence to verify the notes but even so that will only be evidence of what she said (the actual words used by her on the phone), and not evidence of the truth  of what she said.
 
An example…

Question to CC staff.

Q. She told you the child was sick?

A. Yes.

That does not show whether or not the child was sick.

Without the witness, just the notes.

To ex…

Q. Did you tell the CC staff the child was sick?
A. yes.

That also does not show whether or not the child was sick which is the crucial question.

However, the CC witness could be a good witness on the credit of the ex. If she is asked,

Q. Why was the child not made available that day?
A. He/she was sick.

To CC staff.

Q. Why did she tell you she was not bringing the child that day?
A. She said the car broke down.

Unless her counsel can shake up the CC staff witness and convince them their notes are not accurate, you then have an excellent arguement on credit.

I'll post more later. I'm late for work. Cheers.
It depends what you want to acheive.

Either approach (having the ability to call the staff as witness or just the record).

The records would be classed as "business records" and as such fall within the rules of evidence.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 

contravening an order

Contravention of a family court order requires only a 'reasonable excuse',such as;  'made no reasonable attempt to comply with the order' look up 70NAC Meaning of contravened an order, and 70NAE what reasonable excuse means.

correct me if i am wrong, 'criminal standard of proof' means 'beyond reasonable doubt'?

Do not forget that this is a family court,  we are dealing with mums and dads not crims - the magistrate scolded the respondent barrister in a prior contravention application of mine.

Last edit: by monaro


Monaro, there have been recent changes made to family law, allowing for harsher penalties.

With stronger penalties, the need for a criminal burden of proof (beyond reasonable doubt) comes into play. If you cannot provide that level and quality of evidence, the Judge cannot give one of the "harsher" penalties, such as jail time for chronic re-offenders for non-compliance of orders. There is lots in the SRL section about this.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
when were these recent changes made? what parts or rules?, i have the most recent act ammended 2008 that is what it states that is required.
If you can prove beyond reasonable doubt thats great - from what i can see is that you do not have to.  

Hmmmm…?

when were these recent changes made? what parts or rules?, i have the most recent act ammended 2008 that is what it states that is required.
If you can prove beyond reasonable doubt thats great - from what i can see is that you do not have to.
I think the relevant legislation here is the Evidence Act… Anyone got any thoughts on that?

4MYDAUGHTER
Artemis said
It depends what you want to acheive.

Either approach (having the ability to call the staff as witness or just the record).

The records would be classed as "business records" and as such fall within the rules of evidence.
It will be allowed in as a business record, but if the Respondent does not agree that the notes represent an accurate version of what was said you can take it no further without the CC witness.

The standard of proof is different for differnt cases. This is even more confusing when considering the scenario that until conviction and sentence, the FM will not know which standard to apply. This dilema was referred to by the full court (particularly Carmody J if I remember correctly) in Dobbs and Brayson [2007] FamCA 1262. Put as simply as I can…The standard of proof to be applied in determining contravention matters generally, including if the there is  a reasonable excuse, is the civil standard, on the balance of probabilities.

Where the court is to impose a community service order, a fine or a sentence of imprisonment, s 70NAF(3) provides that the court must be satisfied beyond reasonable doubt that grounds for making such orders exist.

Where breaches are "less serious" rather than "more serious", or if you are not seeking a community service order, a fine or a sentence of imprisonment, the distinction will not be significant. If it is more serious, (2nd or subsequent conviction or a bad 1st breach) and you are seeking one of the penalties mentioned above, it becomes a bit of a problem. Which facts must then be proved beyond reasonable doubt, and which on the balance of probability or do you go back and start again once it becomes clear that it is a more serious offence?

I think the full bench in Dobbs and Brayson (not in Judgement but during the course of the appeal) were hinting at the need for legislative reform. I second that.
More serious breaches of contact orders may fall into Subdivision C, Division 13A (i.e. a Stage 3 breach)

One of the criteria for a Stage 3 breach is

  • whether or not there have been second or subsequent breaches (of the same order)
I am looking for some clarification on this point.

Does 'second or subsequent breach' mean a finding of contravention in a previous contravention proceeding? Or could it mean findings of multiple breaches in the current contravention proceedings?

Perhaps I should explain - I am about to commence contravention proceedings. The Respondent breached orders on 4 consecutive weekends last month.

I should be able to successfully prove all 4 breaches - although one was fairly minor. I might add, my goal is to have the Order varied such that the current 2 hour weekend supervised contact is changed to 4 hours - and it will have to be changed to 'low level' vigilance or unsupervised because the Centre does not have the staff resources to cover this change while maintaining a 'high-level' vigilance. The Contact Centre support this change.

If she is found to have breached orders on 4 occasions (without reasonable excuse) would this tip matters into a Stage 3 compliance regime?

4MYDAUGHTER
4 weekends in a row is still one conviction i.e. a first offence, however a prior conviction is not required for a court to apply s70NFA (more serious contravention) but the first offence needs to be a biggy. See;

s70NFA(2)(b) - the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.

Your job is to show that 4 weekends in a row falls into that catagory. It will not be easy, but not impossible. It depends on the evidence, and the attitude of the FM. For example, the respondent may argue as reasonable excuse illness or stubborn resistance on the part of the child. The FM may reject that defence on strict application of the law, but not find the serious disregard required under s70NFA(2)(b) because the ex had a genuine but never-the-less mistaken belief that withholding the children was necessary. The serious disregard test is more likely satisfied if the children are withheld in anger, or as punishment for some perceived wrong, or if the visits were following an Order which the ex did not like, or it was inconvenient etc.
Have any corrospondence ready to tender. If you wrote to her following each breach "putting her on notice" of your intention or seeking a medical reports (if illness is alleged), these letters could be useful in your case. Likewise any reply.
 
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