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R v JJC[2017] QDCPR 37

DISTRICT COURT OF QUEENSLAND

CITATION:

R v JJC  [2017] QDCPR 37

PARTIES:

THE QUEEN

(respondent)

v

JJC

(applicant/defendant)

FILE NO/S:

213 of 2017 

DIVISION:

Criminal

PROCEEDING:

Section 590AA Application

ORIGINATING COURT:

District Court, Maroochydore

DELIVERED ON:

14 November 2017 (orders)

30 November 2017 (reasons)

DELIVERED AT:

District Court, Maroochydore

HEARING DATE:

14 November 2017

JUDGE:

Long SC DCJ

ORDER:

The parental responsibility of the defendant for his child, as provided in s 61C of the Family Law Act 1975, does not provide any authorisation, justification or excuse, or lawful entitlement, for his conduct in taking that child from the custody or protection of the other parent of the child, her mother and against the will of that other parent, on 26 August 2016

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – PRIMA FACIE CASE OR CASE TO ANSWER – Where the defendant is charged with unlawfully taking his biological daughter out of the custody of and against the will of the child’s biological mother – Where the defendant effectively sought a ruling as to whether he had a case to answer – Where the defendant contended that s 61C of the Family Law Act 1975 provided the lawful entitlement to take the child and therefore authorisation, justification or excuse for his conduct – Whether the taking of the child by the defendant may be found to be unlawful 

LEGISLATION:

Criminal Code Act 1899 s 363A

Family Law Act 1975 (Cth) ss 60B; 61B; 61C; 61DA(1); 61DA(4); 61DAC

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

CASES:

R v Beble [1979] Qd R 278

R v Gesa & Nona; ex-parte A-G (2000) 110 A Crim R 507

Goode v Goode (2006) FLR 212

In the marriage of B (1997) 140 FLR 11

R v Johnson [1957] Qd R 594

COUNSEL:

K Bryson for the applicant

S Dennis for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Office of the Department of Public Prosecutions for the respondent

Introduction

  1. [1]
    The following are the elaborated reasons for the following ruling made on 14 November 2017:

“The parental responsibility of the defendant for his child, as provided in s 61C of the Family Law Act 1975, does not provide any authorisation, justification or excuse, or lawful entitlement, for his conduct in taking that child from the custody or protection of the other parent of the child, her mother and against the will of that other parent, on 26 August 2016.”

  1. [2]
    First, that ruling was made in respect of the indicted charge:

“That on or about the 27th day of August 2016 at Moffat Beach in the state of Queensland, [JJC] unlawfully took …. , an unmarried child under 16 years, out of the custody of and against the will of, ….. , her mother.

  1. [3]
    On 14 November 2017, that ruling was made upon what had emerged, by agreement of the parties, as a pre-trial hearing, albeit on what was otherwise expected to be the first day of the trial of the defendant upon the indicted charge. What was sought was an early ruling as to whether the defendant had a case to answer and of a kind as referred to in R v Gesa & Nona ex-parte A-G.[1]
  1. [4]
    For that purpose, a document entitled “Draft statement of facts” was admitted and marked as Exhibit 2. From that, it may be gleaned and assumed for the purpose of providing factual context or basis for this ruling, that the prosecution may prove the following facts:
  1. (a)
    The named defendant and mother are the biological parents of the named child and she was born on 2 October 2015.
  1. (b)
    Shortly thereafter, the parents of the child separated and on 9 December 2015 a temporary protection order pursuant to the Domestic and Family Violence Protection Act 2012 was put in place and on 17 February 2016 a protection order was made pursuant to s 37 of that Act, naming the child and the aggrieved, as her mother and expressed to continue in force, subject to further order, to and including 16 February 2018, containing the following usual statutory conditions:

“(1) The respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.

  1. (2)
    The respondent be of good behaviour towards the child and not commit associated domestic violence against the child and not expose the child to domestic violence.”[2]
  1. (c)
    The circumstances leading to the making of that order included that on 4 December 2015, when the child was two months old, the defendant took the child from her mother and from Miles towards Chinchilla.  This had been achieved by the defendant holding the mother down by the throat and with the assistance of his aunt. 
  1. (d)
    The defendant last saw the child in June 2016, before her mother moved to Moffat Beach and there had been no contact since.
  1. (e)
    On 26 August 2016, the mother was at her house at Moffat Beach and had her aunt and her children, including her 16 year old son, staying there.   At about 10.30pm, the mother went to bed, on a mattress on the loungeroom floor, with the complainant child.
  1. (f)
    On 27 August 2016 at about 2.50am, the mother awoke and noticed that her child was missing and also noticed that her 16 year old cousin had gone, along with his bag, clothes, phone and charger.
  1. (g)
    At approximately 4.00am the owner of a residence at 231 New England Highway, Harlaxton, observed a blue Toyota Camry in the driveway and her attention was then drawn to the defendant.  When she greeted the defendant, he was holding the child and was accompanied by the 16 year old boy and eventually, a female friend of the defendant.
  1. (h)
    Shortly after 7.30am, the defendant advised the owner of the residence that he had taken the child from Caloundra without the knowledge of the mother.  He also stated that the 16 year old boy had encouraged him to come and get the baby, as the mother was ‘not a fit mother’.
  1. (i)
    At about 10.07am, a police officer received a phone call from the defendant, who stated he had the child with him at 231 New England Highway, Harlaxton.
  1. (j)
    At about 2.00pm the child was reunited with her mother.
  1. (k)
    On 27 August 2017, the defendant participated in a formal interview with police.  During the interview he admitted that text messages which police had located, after seizing the telephones of the defendant and the 16 year old boy, were about their plan to abduct the child from her mother during the middle of the night. And that he met the 16 year old at the Caloundra Stockland Shopping Centre on 27 August 2016, whereby the 16 year old boy agreed to help him take the child due to issues of access.  He further admitted that he waited outside the address, with his female friend, for the 16 year old boy to come out with the child and that all three drove to Toowoomba with the child and to the Harlaxton address. 
  1. [5]
    It was noted that the two co- accused, the female friend who was 18 years old at the time, and the 16 year old boy, had each been dealt with, separately, for their involvement in the commission of the offence.

Contentions

  1. [6]
    The charge against the defendant is made pursuant to s 363A of the Criminal Code, which relevantly provides as follows:

“Any person who unlawfully takes an unmarried child under the age of 16 years out of the custody or protection of the child’s father or mother, or other person having the lawful care or charge of the child, and against the will of the father, mother or other person, is guilty of a crime, and is liable to imprisonment for 7 years.”

  1. [7]
    For the defendant, it is not contended that s 363A is not capable of application to these circumstances, or more particularly, solely because of the defendant’s position as the biological father of the child. Rather it is contended that because there were no relevant orders in place and particularly any order defining or limiting his entitlement otherwise, s 61C of the Family Law Act 1975 (“FLA”) provided the lawful entitlement and therefore authorisation, justification or excuse for his conduct. Accordingly, the contention was that s 61C of the FLA provided the lawful entitlement of the defendant to so take the child, in circumstances that would otherwise constitute the offence pursuant to s 363A of the Code.[3]
  1. [8]
    At least, this is a summary of the position developed for the defendant in the course of the hearing of this application, noting that initially the proposition that was raised was simply that:

“15. In circumstances where the defendant is the biological father of the subject child and no courts orders exist in relation to the child, the taking of his own child cannot be said to be unlawful.”

  1. [9]
    When pressed for identification of the purported legal entitlement of the defendant to act as he did, reference was made to s 61B and s 61C of the FLA, which respectively provide as follows:

61B Meaning of parental responsibility

In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

61C Each parent has parental responsibility (subject to court       orders)

  1. (1)
    Each of the parents of a child who is not 18 has parental responsibility for the child.

Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court.  See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.

Note 2: This section does not establish a presumption to be applied by the court when making a parenting order.  See section 61DA for the presumption that the court does apply when making a parenting order.

Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.

  1. (2)
    Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents.  It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
  1. (3)
    Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).

Note: Section 111CS may affect the attribution of parental responsibility for a child.“

And, contextual attention was drawn to s 60B, which relevantly provides:

“60B Objects of Part and principles underlying it

  1. (1)
    The objects of this Part are to ensure that the best interests of children are met by:
  1. (a)
    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
  1. (b)
    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
  1. (c)
    ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
  1. (d)
    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
  1. (2)
    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
  1. (a)
    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
  1. (b)
    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
  1. (c)
    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
  1. (d)
    parents should agree about the future parenting of their children; and
  1. (e)
    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
  1. [10]
    It may be noted that these provisions are reflective of amendments made to the FLA by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). However, the concept of parental responsibility had been previously introduced into the FLA, as is evident from the following extract from Goode v Goode[4].

“33. In B v B: Family Law Reform Act 1995 the Full Court comprising Nicholson CJ, Fogarty and Lindenmayer JJ considered at paragraph 9.23 and following what the definition of parental responsibility pursuant to s 61B meant.  They said at paragraph 9.24 and following:

This definition provides little guidance, relying as it does on the common law and relevant statues to give it content.  It would appear to at least cover guardianship and custody under the previous Part VII and may be wider.  The Attorney-General submitted that it was probably wider than that and covered “all of the underlying and continuing common law and statutory law that affects the relationship of parents and their children”.

It omits any reference to rights.  Whilst this omission is understandable, given the philosophy of the amendments, it is doubtful whether that achieves any practical effect other than to make it clear that there are no possessory rights to children, insofar as this could be said to have been the case prior to the amendments.

Read in conjunction with s 60B(2)(c) the emphasis is on the continuance of responsibility independently of the status of the parental relationship.  Section 61D(2) provides that a parenting order does not take away or diminish any aspect of parental responsibility except to the extent expressly provided for in the order or necessary to give effect to the order.

An important issue is whether parents may exercise this responsibility independently or whether they must do so jointly.

  1. At paragraphs 9.29 and following their Honours said:

In the absence of a specific issues order, we think it unlikely that the Parliament intended that separated parents could only exercise all or any of their powers or discharge all or any of their parenting responsibilities jointly in relation to all matters.  This is never the case when parents are living together in  relation to day to day matters, and the impracticability of such a requirement when they are living separately only has to be stated to be appreciated.

As a matter of practical necessity either the resident parent or the contact parent will have to make individual decisions about such matters when they have the sole physical care of the children.  On the other hand, consultation should obviously occur between the parents in relation to major issues affecting the children such as major surgery, place of education, religion and the like.  We believe that this accords with the intention of the legislation.

  1. Whilst we consider this is still a correct description of the concomitance of parental responsibility where no order has been made by a court, we do not think in light of the amending legislation it has application once an order for equal shared parental responsibility is made by the Court.  This is made clear by the provisions of ss 61C, 61D and 61DA.
  1. While it may be self-evident from the provisions of s 61C, note 1 makes it clear that the legal position prevails only to the extent it is not displaced by a parenting order made by the Court.  Note 1 states:

This section states that the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court.  See subsection (3) of this section and section 61D(2) for the effect of a parenting order.

  1. Thus, where no contrary order has been made, parents may exercise this responsibility independently or jointly.  This would be so whether the parties were married, living together, never lived together or separated as long as there was no contrary order in force.
  1. Section 65DAC sets out the effect of a parenting order that provides for shared parental responsibility.  The section requires decisions about major long-term issues about children to be made jointly by those persons who are to share parental responsibility and that they are required:
  1. (a)
    to consult the other person in relation to the decisions to be made about the issue; and
  1. (b)
    to make a genuine effort to come to a joint decision about that issue.

 Section 65DAE provides that if a child is spending time with a person under a parenting order, then that person is not required to consult with a parent or other person who shares parental responsibility about decisions that are not major long-term issues, unless the Court has made a contrary order.

  1. We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC.  In the former, the parties may still be together or may be separated.  There will be no court order in effect and the parties will exercise the responsibility either independently or jointly.  Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.”

Discussion

  1. [11]
    When pressed to attempt to develop the identification of the purported entitlement, beyond the defined meaning of parental responsibility, the response for the defendant was not to attempt to do so and to steadfastly adhere to what was referred to as “his parental rights and responsibilities with respect to the child” and as “evolve from the Family Law Act”,[5] and contentions that he had “the same rights and responsibilities as …. the mother”[6] and his “sharing” of those rights.[7] At times, that entitlement was referred to as “a right to possession” of the child.[8]
  1. [12]
    As was correctly pointed out for the prosecution, there is, in the provisions of the FLA, no statement of any such right in a parent or even any statement of any legal position which establishes any such right which may be asserted or exercised against another parent of a child. Rather the provisions state a legal position as to responsibility as to the interests of children, for the purpose of the consideration of orders that may be made under the FLA and so much is expressly recognised in the first notation to s 61C(1), which explains that the section states:

“…. the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court”.

  1. [13]
    Moreover and irrespective of what may have been the characterisation of the common law or expressed in earlier statutory provisions, in respect of the legal relationship of parent and child, it is clear from s 60B that the expression of parental responsibility in s 61B and s 61C of the FLA, occurs in the context of underlying objects and principles which include a clear focus on the rights of the child and particularly the ensurance that “the best interest of children are met”. And that to the extent that any interest of a parent is referred to, it is, by contrast, in terms that:
  1. “(2)
    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

…..

  1. (c)
    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
  1. (d)
    parents should agree about the future parenting of their children;”[9]
  1. [14]
    A fundamental difficulty with the defendant’s contention is that the provisions of the FLA and upon which reliance was placed, do not create, as between parents, any right or entitlement in respect of a child. As is specifically noted in the extract set out above from Goode v Goode,[10] in the absence of a shared parenting order and which attracts the statutory authority of s 65DAC (in respect of any “major long-term issue”), these provisions do not affect the reality and practicality of individual exercise of parental responsibility, whether or not the relevant parents are together or separated.  And that proposition was also recognised prior to the 2006 amendments to the FLA,[11] in the decision: In the marriage of B.[12]
  1. [15]
    Moreover and whilst as a consequence of the 2006 amendments to the FLA, s 61DA(1) states the following general presumption:

“When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

the following note immediately follows that sub-section:

“Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).”

And it may be further noted that the presumption is expressly stated to apply to the making of parenting orders under the FLA and that the succeeding sub-sections provide for exceptions as to the applicability of the presumption, including in s 61DA(4) (as read with s 65DAA), the maintenance of the underlying requirement of regard to what is considered to be in the child’s best interest in making parenting orders. 

  1. [16]
    Accordingly, it may be seen that the principles underlying these provisions in the FLA provide no warrant for concluding that the defendant may have had some right or entitlement to have the child with him and more particularly to take the child from an established status quo and where the child’s interests were being protected by the other parent, exercising direct responsibility for the child. Necessarily if the defendant’s contention were to be accepted, the other parent would be entitled to claim precisely the same right or entitlement, with the obvious potentiality of the legitimisation of the prospect of repetitive similar behaviour in respect of each parent’s interest in respect of the child.[13]
  1. [17]
    Neither is support for such a contention to be found in s 363A of the Criminal Code, or the context for it in that legislation.  Whilst that section is directed at the taking of an unmarried child “out of the custody or protection of the child’s father or mother or other person having the lawful care or charge of the child”,[14] it may be noted that in  R v Johnson,[15] Philp J noted (in respect of an earlier and equivalent statement of the same offence)[16] the tendency of the word “custody” to have a meaning of “safe-keeping; protection” and concluded that the use of the phrase “custody or protection” was a legislative use of “alternatives…which in fact mean the same thing”. 
  1. [18]
    It is therefore notable that His Honour identified this focus upon the protective nature of the relationship, despite otherwise noting what may now be regarded as the outmoded recognition in the common law of parental “rights” of custody or “possession” of a child and his determination as to an implied delegation of custody from father to mother, as constituting “de facto custody” in the mother. Once again those observations are reflective of not only the quite different circumstances involved in that case but also what may now be regarded as outmoded references to the dominance recognised at common law of the position of a father and which have not survived as being consistent with contemporary values and such as are reflected in the provisions of the FLA.
  1. [19]
    In fact, it may be noted that even under the earlier version of the same offence, which then only applied to a relevant female child, it was recognised that such a child may be in the “custody or protection” of “her mother or father”.
  1. [20]
    Also and in further differing circumstances and with reference to R v Johnson, in the later decision of R v Beble,[17] the point was made that the application of s 352 did not depend upon any identification of “actual physical possession of the child” at the moment the child is taken and once again the importance of the words “custody and protection”, was noted.
  1. [21]
    Neither would rejection of the defendant’s contention render the requirement for proof of unlawfulness, otiose. For example, it is possible to conceive of circumstances where s 25 of the Criminal Code might have application.

Conclusion

  1. [22]
    Accordingly and whatever might be concluded as to the legal interest of a parent of a child, in respect of that parent’s parental responsibility for the child and interest in obtaining parenting orders under the FLA, such an interest does not provide any authorisation, justification or excuse for the taking by one parent of the child from the established situation of the protection of and day to day care of another parent of that child and contrary to the right of the child to that exercise of parental responsibility.

Footnotes

[1]  (2000) 110 A Crim R 507 at [18].

[2]  It was not contended that the restraint invoked by this order provided any basis for concluding that the defendant’s charged conduct was unlawful.

[3]   It may be noted that consequently to the ruling made on 14 November 2017, the defendant was arraigned and pleaded guilty to the offence, with sentencing adjourned to a later date.

[4]  (2006) FLR 212 at [33]-[39].  Such observations being made in specific reference to the provisions as amended in 2006 and the earlier decision in respect of the pre-amendment provisions: In the marriage of B (1997) 140 FLR 11.

[5]  T1-29..36-41.

[6]  T1-8.25, 1-31.32-35.

[7]  T1-28.23-25.

[9] Family Law Act 1975 (Cth) s 60B(2).

[10]  See [10], above.

[11]  And where the change in terminology included replacing “residents” and “contact”, respectively with “lives with” and “spends time with” and effected the introduction of the concept of “equal shared parental responsibility”.

[12]  (1997) 140 FLR 11, see paragraph [10] above.

[13]   Obviously, more difficult circumstances, including as to those of effecting a separation of cohabitation of parents of a child, may be envisaged but those problems are likely to relate to the element of taking of the child, rather than presenting any reason for doubting the conclusion otherwise reached here.

[14]  The use of the term “custody” being reflective of older terminology and where the terms “custody” and “guardianship” were (and are used: e.g. see s 12 and s 13 of the Child Protection Act 1999) to delineate a demarcation between responsibility for the immediate or day to day care of the child and the overall or longer term care of the child.

[15]  [1957] Qd R 594.

[16]  Then in s 352 of the Criminal Code.

[17]  [1979] Qd R 278 at 281-2.

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Editorial Notes

  • Published Case Name:

    R v JJC

  • Shortened Case Name:

    R v JJC

  • MNC:

    [2017] QDCPR 37

  • Court:

    QDCPR

  • Judge(s):

    Long DCJ

  • Date:

    30 Nov 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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