BARBERO & CONNERS
[2019] FCCA 2322
•26 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARBERO & CONNERS | [2019] FCCA 2322 |
| Catchwords: FAMILY LAW – Contravention – whether the mother has contravened orders made on 8 October 2008 and 26 June 2009 without reasonable excuse – if contraventions proven, what penalty might be appropriate in circumstances where the mother has been found to have contravened orders on two previous occasions. |
| Legislation: Family Law Act 1975 (Cth), ss.65N, 70NAC, 70NAD, 70NAE, 70NBA,70NEB, 70NEC, 70NECA, 70NFA, 70NFB, Part VII |
| Cases cited: Elspeth and Peter, Mark and Peter, and John and Peter [2007] FamCA 65 |
| Applicant: | MR BARBERO |
| Respondent: | MS CONNERS |
| File Number: | MLC 8451 of 2008 |
| Judgment of: | Judge Small |
| Hearing date: | 12 December 2018 |
| Date of Last Submission: | 12 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 26 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robinson |
| Solicitors for the Applicant: | Carew Gartlan Mcclelland |
| Counsel for the Respondent: | Ms Wiener |
| Solicitors for the Respondent: | Cathleen Corridon & Associates |
| Counsel for the Independent Children's Lawyer: | Mr Ambrose |
| Solicitors for the Independent Children's Lawyer: | Madison Branson Lawyers |
ORDERS
UPON THE COURT FINDING THAT:
The Respondent mother, without reasonable excuse, contravened paragraph 8(e) of the Orders of 8 October 2008 on the following dates:
(a)25 March 2016;
(b)8 April 2016;
(c)22 April 2016;
(d)6 May 2016;
(e)20 May 2016;
(f)3 June 2016;
(g)17 June 2016;
(h)1 July 2016; and
(i)15 July 2016;
The Respondent mother, without reasonable excuse, contravened paragraph 8(f) of the Orders of 8 October 2008 on the following dates:
(a)26 February 2016; and
(b)11 March 2016;
The Respondent mother, without reasonable excuse, contravened paragraph 8(i) of the Orders of 8 October 2008 on 28 May 2016:
The Respondent mother, without reasonable excuse, contravened paragraph 8(k) of the Orders of 8 October 2008 on 11 June 2016:
The Respondent mother, without reasonable excuse, contravened paragraph 8(l) of the Orders of 8 October 2008 on 2 March 2016:
The Respondent mother, without reasonable excuse, contravened paragraph 5 of the Orders of 26 June 2009 on the following dates:
(a)1 February 2016;
(b)29 February 2016;
(c)9 March 2016;
(d)10 March 2016;
(e)11 March 2016;
(f)17 March 2016;
(g)18 March 2016;
(h)11 April 2016;
(i)27 April 2016;
(j)28 April 2016;
(k)29 April 2016;
(l)19 May 2016;
(m)25 May 2016;
(n)26 May 2016;
(o)6 June 2016;
(p)9 June 2016;
(q)20 June 2016;
(r)22 June 2016; and
(s)24 June 2016; and
The Respondent mother, without reasonable excuse, contravened paragraph 7 of the Orders of 26 June 2009 on each and every day from 26 June 2010 to 12 December 2018:
THE COURT ORDERS
Pursuant to s.70NFB(2) of the Family Law Act1975 (Cth), the mother shall enter into a Bond of two years’ duration in the sum of $2000.00 (but without surety) to be of good behaviour and to comply with all current orders of this court.
The mother shall, within 7 days, do all such acts and things and sign all such documents as may be necessary for her to enrol in and attend a post-separation parenting course approved by the Independent Children’s Lawyer, and upon completion of that parenting course she shall provide a certificate of completion to the lawyers for the father and the Independent Children’s Lawyer.
The mother shall, within 12 months from the date of this order, pay to the father the sum of $1500.00, being costs awarded to him pursuant to the Orders of 26 June 2009.
All extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Barbero & Conners is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8451 of 2008
| MR BARBERO |
Applicant
And
| MS CONNERS |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contravention proceedings issued by the father, Mr Barbero (“Mr Barbero” or “the father”) against the mother, Ms Conners (“Ms Conners” or “the mother”) on 9 August 2016.
The orders alleged to have been contravened are final parenting orders made by consent before (then) Federal Magistrate Connolly on 8 October 2008 (“the 2008 Orders”), and further Orders made by (then) Federal Magistrate Walters on 26 June 2009 after previous contravention proceedings (“the 2009 Orders”), in relation to the parties’ child X born … 2002 (“X” or “the child”).
Background
The father was born on … 1973 and is 46 years old.
The mother was born on … 1974 and is 44 years old.
The parties separated in 2002 within a couple of months of X’s birth.
X is the only child of the relationship, although both his parents have other children from previous and/or subsequent relationships. X lives with his mother and two younger sisters, and in the relevant period, they lived in a gated community in Suburb C.
After separation, X spent regular and frequent time with his father pursuant to Orders made on 24 June 2003, 16 September 2003 and 24 June 2004 (“the previous Orders”).
The father initiated Contravention proceedings in 2008, and those proceedings led to the 2008 Orders being made by consent.
Further proceedings for Contravention in 2009 led to the making of the 2009 Orders.
In December 2012 the parties entered into a binding Child Support Agreement.
Between 2009 and 2016, Mr Barbero spent regular time with X pursuant to the 2008 Orders as amended by the 2009 Orders.
X has not spent regular time with his father pursuant to 2008 and 2009 Orders since February 2016.
It is the question of how and why that situation arose that is at the crux of these proceedings.
Procedural Issues
The Final Hearing of this Application occurred on 12 December 2018.
On 9 September 2016, the mother had filed an Application in a Case seeking a variation in the 2008 and 2009 Orders. In that document, she essentially sought to discharge the 2008 and 2009 Orders in relation to the time X was to spend with his father.
The mother filed an “Amended Application in a Case for Final Orders” on 7 December 2018.
At the commencement of the Final Hearing, I raised with the parties that the mother had filed only an Application in a Case and no Initiating Application in the proceedings, and that therefore, as rule 4.01 of the Federal Circuit Court Rules 2001 (Cth) requires the filing of an Initiating Application to commence proceedings of the kind set out in the mother’s Application in a Case, and in her “Application in a Case for Final Orders”[1], the Contravention Application was the only one properly on foot before the Court.
[1] I note that there is no such Form used in the Federal Circuit Court of Australia.
It was agreed, however, that the very wide powers the Court has under s.70NBA of the Family Law Act 1975 (Cth) (“the Act”), would allow the Court to vary the current Orders, should it be in X’s best interests to do so, after the Court had heard the evidence in the Contravention proceedings.
Therefore, until I heard submissions at that stage of proceedings, it was agreed that counsel for the Independent Children’s Lawyer would take no part in the proceedings as they related to proof of the alleged contraventions. He did, however, cross-examine the mother about matters related to but not specifically concerning the alleged contraventions.
The witnesses at the Final Hearing were the mother, the father and Mr D, who gave evidence in support of the father’s case. All underwent cross-examination.
Following the conclusion of evidence and submissions on 12 December 2018, I reserved my decision.
The Law
The law in relation to contraventions of parenting orders is found in Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Sections 70NAC and 70NAD of the Act set out the meaning of what it is to contravene an order as follows:
70NAC Meaning of contravened an order
A person is taken for the purposes of this division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order – he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise – he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
(Note omitted)
70NAD Requirements taken to be included in certain orders
For the purposes of this Division:
(a) a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and
(b) a parenting order that deals with whom the child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and
(c) a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and
(d) a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.
The Orders alleged to have been contravened in this case are parenting Orders which deal with “spend time” arrangements.
Therefore those Orders are taken to include the requirements of s.65N of the Act.
Section 65N states as follows:
65N(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
65N(2) A person must not:
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and the child from benefiting from spending time with each other under the order .
The legislation also provides for the court to be satisfied that a person has contravened an order, but to find that he or she had “a reasonable excuse” for doing so, that finding resulting in exoneration of the person, and/or further orders being made.
That is, an Applicant in Contravention proceedings must prove not only that an order has been contravened, but that the Respondent to the Application has contravened the order without a reasonable excuse.
The meaning of “reasonable excuse” is set out in s.70NAE of the Act as follows:
70NAE(1) The circumstances in which a person may be taken to have had, for the purposes of this division, a reasonable excuse for contravening an order under this act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
70NAE(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it, and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
70NAE(4) a person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with the person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
70NAE(5) a person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
Section 70NAE (6) and (7) are not relevant in these proceedings.
For the benefit of the parties, the test for the “reasonableness” of a person’s excuse is that of a “reasonable person in the street”, and it is not a value judgment of a reasonable Judge or legal professional.[2]
[2] Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313
The court’s primary focus when dealing with Contravention Applications is to ensure future compliance with Court orders.[3]
[3] McClintock & Levier [2009] FamCAFC 62 [72]
The onus of proving the facts of a contravention lies with the Applicant, that is, with Mr Barbero.
However if the facts are proven, the onus then moves to Ms Conners as the Respondent, to show, on the balance of probabilities, that she had a reasonable excuse for the contravention.
So, if I find, as a matter of fact, that Ms Conners has contravened any of the Orders as alleged, she must prove to the Court, on the balance of probabilities, either that she did not understand the obligations imposed on her by the Orders, or that the contraventions were necessary in order to protect the health or safety of the child and/or her.
The Contraventions Alleged
The father’s Application alleges a total of 40 contraventions by the mother: 19 in relation to the 2008 Orders, and 21 in relation to the 2009 Orders.
Four of those counts (numbers 12, 13, 14, and 19 in relation to the 2008 Orders) were dismissed at the beginning of the Final Hearing as not complying with Rule 25B.02 of the Federal Circuit Court Rules 2001.
Of the remaining allegations, 20 related to alleged contraventions of paragraph 5 of the 2009 Orders, 9 to alleged contraventions of paragraph 8(e) of the 2008 Orders, 2 to alleged contraventions of paragraph 8(f) of the 2008 Orders, and 1 to alleged contraventions of each of paragraphs 8(i), 8(k), 8(l) and 15 of the 2008 Orders, and paragraph 7 of the 2009 Orders.
Of those remaining 36 counts, the mother’s response was that she denied count number 40 in relation to paragraph 7 of 2009 Orders, and that she had a reasonable excuse for the balance of the contraventions – that is, for 35 of the counts.
The relevant parts of the 2008 Orders alleged to have been contravened state as follows:
Paragraph 8:
The child shall spend time and communicate with the father as follows:
(e)from 5:00pm Friday, 14th November 2008 until 5:00 pm Sunday, 16th November 2008 and every alternate weekend thereafter;
(f)from 5:40pm Friday until 5:00pm Sunday on another weekend to be agreed between the parties (“make-up time”);
(g)for the first week of each school term and Christmas holiday period;
(i)on X’s birthday (…) for a period of not less than two hours at times to be agreed
(k)overnight on the father’s birthday (…) at times to be agreed between the parents
(l)by telephone each Wednesday between 5:30 PM and 6:30 PM with the father to telephone the mother’s mobile number and the mother to ensure the child is available.
Paragraph 15
Without admitting the need for the same both parents be and are hereby restrained by injunction from denigrating the other parent to or in the presence or hearing of the child, or allowing the child to remain in the presence or hearing of another person so doing.
The relevant parts of the 2009 Orders alleged to have been contravened stated as follows:
Paragraph 5
The mother and the father each be restrained from causing or permitting the child X born … 2002 to miss any school day (or part thereof) whatsoever, unless:
(a)a medical certificate has been obtained, confirming that the child should not attend school;
(b)both parents provide their written prior agreement (including by email or SMS message) to the child missing school; or
(c)in special circumstances where the agreement of both parents could not be obtained the school principal of the school attended by the child confirms that, in his or her opinion, the child should not attend school because of significant matters relevant to the health of the child or other children attending the school.
Paragraph 7
The mother pay the father’s costs of the within proceedings – fixed in the sum of $1500.00 – within 12 months.
The mother’s defence to all the counts in relation to her admitted breaches of paragraph 8 of the 2008 Orders and paragraph 5 of the 2009 Orders was the same: that is, that she did not make X available for time with his father, and did not provide medical certificates for X’s absences from school, as a result of the father’s behaviour on the afternoon of 26 February 2016, that behaviour causing her to fear for both her and X’s safety. If I accept that defence, Ms Conners will have discharged her onus under s70NAE(5) of the Act and will be excused for those breaches.
It therefore became evident that the Court would have to make a finding about whether or not the events of 26 February 2016, as alleged by the mother, actually took place.
Those events had already been interrogated in criminal proceedings against Mr Barbero, as a result of which, charges that had been laid against him were withdrawn at their final hearing.
However, in these proceedings, the standard of proof is lesser – that is, I must only be satisfied on the balance of probabilities that the alleged events took place in order to make a finding of fact (s.70NAF of the Act), whereas the criminal court was required to be certain beyond a reasonable doubt. Therefore, the fact that the criminal court was not able to be made satisfied beyond a reasonable doubt is no bar to me finding that, on the balance of probabilities, Mr Barbero did engage in the conduct alleged.
In relation to the allegations about the mother failing to produce medical certificates when X was absent from school in contravention of paragraph 5 of the 2009 Orders, the father’s counsel informed the Court that he would be asking the mother about all 20 allegations set out in the Application, as the mother had said she had those medical certificates. Counsel said the father had never seen them, if indeed they existed, and he called for their production.
The Court was also informed that the mother would be pleading Not Guilty to the allegation that she had not paid the father’s costs of the 2009 proceedings on the basis that she and the father had come to an agreement that she would forgo child support in that amount instead of actually paying him the $1500.00 ordered.
The Evidence
It is not possible to refer to every fact and/or matter raised at the Final Hearing of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including Affidavit evidence, my notes taken at the Final Hearing, the transcript of the Final Hearing and the demeanour of the parties at that Hearing, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
The Alleged Breaches of Paragraph 8 of the 2008 Orders
The father’s evidence
The father’s evidence is found in his Affidavits affirmed 8 August and filed 9 August 2016 (“the father’s first Affidavit”), that affirmed and filed 25 November 2016 (“the father’s second Affidavit”), that affirmed 10 October and filed 18 October 2017 (“the father’s third Affidavit”), in his oral evidence given at Court.
As it is not in dispute that Ms Conners did not make X available to spend time with his father on 14 occasions between 26 February 2016 and 15 July 2016, and did not provide medical certificates for his absences from school on 20 occasions between 1 February 2016 and 24 June 2016 as alleged in the father’s Application, I do not need to set out each of those allegations in full.
Suffice to say that Ms Conners admits that she breached the 2008 Orders and the 2009 Orders in terms of the facts alleged, but her defence is that she had a reasonable excuse because of the father’s abusive and violent behaviour on 26 February 2016. In those circumstances, I will concentrate on that defence for all the agreed breaches where X was not made available for time with his father, or where no medical certificate was supplied for his absences from school, as set out in Court Orders.
In the father’s first Affidavit, he sets out a series of text messages said to have been sent to him by the mother on 26 February 2016, those messages being[4]:
[4] I have included the text of all text messages exactly as it is found in the printed material before the Court, and have made no corrections or amendments to it.
10:43 a.m. I need some money to buy the rest of X schoolbooks $300 can you pay it?
11:40 a.m. That’s fine I’ll just explain to X I just don’t have the money for the books. And that you have refused to help.
3:56 p.m. please don’t contact me again I explained X didn’t want to go to your house and I can’t make him.
Mr Barbero annexes the content of further text messages said to have been sent and received by him on that day, and on 12 February 2016, although it is apparent that he has not included the whole text exchange between him and the mother on those days.
It is also apparent from the copies of texts annexed to the father’s first Affidavit that the parties had been in some conflict about Mr Barbero contributing to X’s education costs for at least two weeks before 26 February 2016. Indeed, it is the evidence of both parties that the question of Mr Barbero’s financial contribution to X’s expenses over and above his Child Support Assessment, and later the Binding Child Support Agreement, has been the source of much conflict between them since they separated some 16 years before the trial.
On 12 February 2016, the father’s evidence is that the mother sent at least three text messages to him, accusing him of abusing her, of lying to and abusing X, and telling the father that he had “lost” X because of broken promises the father had made to him about contributing to his school expenses.
Those text messages are vitriolic and angry in tone, although, as stated, Mr Barbero does not include any text messages he sent to the mother on 12 February 2016.
The text messages said to have been sent to the father by the mother on 26 February 2016 begin at 9:01:41 a.m. with the following message:
Ok I tried and again all you can do is hang up on me and disrespect me. I can’t physically make X go now he is to big and to old. So how he feels is on you now, you have no one to blame but yourself. After the way you have spoken and treated him.
The full text of the messages annexed to the father’s first Affidavit following that message is as follows:
10:43:03 a.m. I need some money to buy the rest of X schoolbooks $300 can you pay it?
Indecipherable time. Need to know as I don’t have the money so I need an answer. Otherwise you can explain to him why (indecipherable) needed for school.
11:01:26 a.m. I need an answer Mr Barbero as he needs the books
11:02:04 stop being such an asshole it’s your son’s education what’s wrong with you and to stand and promise to his face any wonder he hates you now
11:32:17 a.m. I need to know today Mr Barbero if you will pay as they have to be purchased he shouldn’t have to go without
11:40:23 a.m. That’s fine I’ll just explain to X I just don’t have the money for the books. And that you have refused to help.
11:40:37a.m. As you made a promise to him I won’t lie to him.
(Message sent by Mr Barbero at 3:02:54 p.m.) Hi X, did you have something on this weekend and wanted to stay at your mum’s?
(Message sent by Mr Barbero at 3:03:26 p.m.) Did he get this message or is his phone still blocked
3:06:52 p.m. He blocked you Mr Barbero as he is angry at the way you spoke to him and not interested in speaking to you. I explained that if you had have had any respect to listen to me and not abuse me and hang up. If X does not want to see you or right to you from now on I can not physically make him you’ve done this yourself.
3:07:26 p.m. I will also be letting him know I am unable to pay for his books because unlike your promised you have refused to help out.
3:22:52 p.m. As I have stated I have gained legal advice and while X can not just go to court and say he does not want to see you I also while I do have to make him available which I would can not physically make him go. I tried this morning to speak to you about this bit in your arrogance you refused to compromise or understand what you did by abusing X in the phone the way you did. You even admitted to the police you abused him and I have that officers name and it’s recorded you made that statement. Your continued abuse of me and degradation is disgusting and X is sick and tired of it being done to me and having to listen to it from you and now be abused by you. You have done this to yourself Mr Barbero. He is a caring kid and all you do is shit on him. You didn’t get him a Christmas present or birthday present last year and if he dares to ask you tell him not to be greedy when he is the least greedy person I know, you lie to him about helping with school. You degrade me. You have refused to take into any sporting activities over the years he has wanted to be in even though you would drive to Suburb O to take the other kids. You continue disgustingly to take out your anger for me on him instead of getting over the fact you couldn’t stand I left you and you can’t act like an adult and so (message stops here in annexure).
3:23:47 p.m. I’ll make him aware whilst promising him you’d pay for anything to do with school you have refused to give me the money to buy the books as I refuse to lie for you anymore.
3:25:03 p.m. I have spent years making up reasons you didn’t come to games and school events or parent teacher nights. Your a bloody pathetic excuse for a human being you and your Father I hope you both choke on your money. You work so hard and for what you don’t look after any of your kids.
(Message from Mr Barbero to the mother at 3:48:52 p.m.) Is X going to come over tonight??
(Message from Mr Barbero to the mother at 3:54:44 p.m.) I will be there at 5
3:56:35 p.m. Please don’t contact me again I explained X didn’t want to go to your house and I can’t make him.
I include this detail in relation to text messages sent between the parties on the day in question to show that there was clearly animus between them on that day, and indeed for at least the two weeks prior to that day, well before the events alleged to have occurred later that afternoon.
Mr Barbero deposes that he arrived at the front gate of the gated community in which Ms Conners and X lived at 4:44 p.m. on 26 February 2016 and that he waited until 4:55 p.m. to engage the gate’s intercom system to get the mother to let him onto the premises so that he could drive into the property and collect X from his mother’s home.
It is his evidence that the mother answered the intercom and he told her he was there to collect X. The mother is then said to have stated that X did not wish to spend time with him, after which she hung up. Mr Barbero says that he then left the mother’s home without “seeing or otherwise speaking to the Respondent or X”.
Annexed to the father’s first Affidavit is a copy of notes taken by X’s general practitioner on 9 March 2016 as a result of a consultation with X lasting almost 45 minutes. The notes record as follows:
09/03/2016 (Wed) with Mr E at …, for 44 m 27 s
assault
26.2.2016
dad grabbed his arm violently
has hit him across the head before
X now very scared of him
threatened him not to tell the police because he is in the public service and knows police officers
scared to go and see him
calls him offensive names e.g. when mum asked him to pay for a school uniform said he was “greedy little shit” and his mother was “greedy shit”
10 x 8 cm bruise on left upper arm
pattern combatible (sic) with finger marks
rang … Child Protectin (sic) Services and gave him the details
advised by CPS and myself not to let X see father for now
contact lawyer to alter court order
probably wil (sic) need supervised visits
discussed at length
Mental health plan done
to see Ms F
the Patient Report … GP Mental Health Care Plan was produced.
Mr Barbero deposes to being “deeply concerned” about the injuries described in the doctor’s notes, as it is his evidence that “they could not have been caused by me as I did not see X on the day in question”. It is his evidence that he does not know how X sustained the injuries described.
In the father’s second affidavit, he denies the mother’s allegations that he had assaulted her at a “bus stop in Suburb C” on 26 February 2016, and annexes a copy of his telephone records which, he says, shows that he was involved in a telephone call for 29 minutes and 46 seconds from 4:56 p.m. on that day.
He says the following:
4(c) All the respondent’s comments regarding my physical contact with her and X on 26 February 2016 are untrue. I had no physical contact with either of them that day. I have never been found guilty of any offence.
Mr Barbero then goes on to set out the mother’s criminal history, saying that she “has an ongoing history of dishonesty” and of having conflicts with former partners which have led to criminal charges and other legal proceedings against her. He says that Ms Conners has also involved her children from previous relationships in legal proceedings between her and her former partners.
In his third affidavit, the father again denies that he assaulted X on 26 February 2016 “or otherwise”.
He sets out the allegations the mother makes against him, and reiterates that he was engaged in a telephone call with Mr D at the time he was alleged to have assaulted X and then the mother.
It is his evidence that Mr D had provided a statement to police, and he annexes that statement, which was made on 10 December 2016 and is in identical terms to Mr D’s affidavit filed in this court.
Mr Barbero then says: “At the contest mention last year the police prosecutor acknowledged that if Mr D were to be believed, the police case could not stand.” I note that this is the first time in his filed material in these proceedings that Mr Barbero refers to any criminal charges being laid against him in relation to the events alleged to have occurred on 26 February 2016.
He deposes that at 5:09 p.m. on 26 February 2016 the mother sent him a text message showing bruising on her wrist. The father says that that text message followed another, sent at 5:08 p.m. saying: “I’ve got you on assault after grabbing my hand how dare you touch me”. He notes that Ms Conners added later the allegation that he had “grabbed her pubic bone”, and that she had not produced her mobile phone for checking as to the date and time of messages she sent as she claimed to have “lost the photographs in the cloud”.
Mr Barbero then states as follows:
3(d) The Respondent comes to the Court with an ongoing history of criminal convictions including for dishonesty, aliases, violence towards former partners or in one case a relative and committing crimes in the presence of her children, as subpoenaed and referred to in my previous affidavits. Setting aside the above matter (by which I take him to be referring to the charges following the allegations made about events on 26 February 2016), I have never been criminally charged. I would understand X being intimidated in her presence.
The father deposes that the prosecution against him did not proceed past the contest mention stage, and that the police were ordered, by consent, to pay his costs of the proceedings in the amount of $15,000. He annexes to his third Affidavit a copy of the Court outcomes record from a hearing at the Magistrates Court of Victoria at Suburb G on 11 October 2017, which states that two charges of Recklessly Cause Injury, and two charges of common assault against him, were withdrawn on that day.
It is the father’s evidence that after the conclusion of those proceedings he referred the conduct of the police to the IBAC, although he does not provide any further information in relation to that matter.
At the Final Hearing on 12 December 2018, the mother’s allegations about the events of 26 February 2016 were put to the father in some detail by counsel for the mother. He was not shaken in his evidence that while he had attended at the entrance to the mother’s gated community, and had spoken to the mother via the intercom system, he had not seen either X or Ms Conners on that day, and he had not assaulted either of them.
It was his evidence that he was charged with the offences later withdrawn “a while” after the event, but agreed that the police had taken out an Intervention Order against him on behalf of the mother and X on 18 March 2016.
He was aware that X had attended at his general practitioner on 9 March 2016 and that he had told both his doctor and his psychologist that his father had hit him.
Mr Barbero agreed that there had been “ongoing disputes about money” between him and Ms Conners, saying that that had been the case “for X’s whole life”.
He denied that the criminal charges against him had been withdrawn because X did not want to give evidence against him in court, and I note that all charges, including those relating to alleged assaults against Ms Conners, were withdrawn on 11 October 2017.
It was the father’s evidence that the police had informed him that the charges were being dropped because “the evidence wasn’t enough”, and that the hearing on 11 October 2017 was actually the Final Hearing of those charges, which had first been laid in mid-2016.
The father gave his evidence in clear and certain terms and, as I have stated, while there were some inconsistencies in relation to the criminal charges, he was not shaken in his evidence concerning the events of 26 February 2016.
Mr D’s evidence
Mr D is a former work colleague of the father and in his Affidavit affirmed and filed 5 December 2018, he states that the father had been assisting him with renovations to his home in early 2016. I note again that this Affidavit is in identical terms to the statement Mr D made to the police in December 2016.
It is his evidence that on 26 February 2016, at approximately 4:53 p.m., he called Mr Barbero to discuss the renovations and the electrical work with which Mr Barbero had been assisting him.
Mr D deposes that Mr Barbero told him during that call, which lasted for 29 minutes, that he was on his way home after attempting to spend time with X on that afternoon, but that no-one had answered, and he had not been able to see him. He says that Mr Barbero had told him that he not seen X “for a while” and that he sounded “disappointed”.
Mr D confirmed his Affidavit evidence at the Final Hearing on 12 December 2018 and was subjected to cross-examination by counsel for the mother.
Mr D agreed that he had made a statement to Victoria Police about this issue on 10 December 2016, some ten months after the fact. It was his evidence that he had spoken to his wife about the events of 26 February 2016 as he recalled them, but that he had not taken any notes of his conversation with Mr Barbero on that day.
In re-examination, Mr Robinson, for the father, tendered a copy of Mr D's Vodafone tax invoice in relation to his mobile phone for the period 17 February to 16 March 2016.
That document shows that on 26 February 2016, at 4:53:55 p.m., a call was made from Mr D’s mobile telephone number … to the number … (the father’s number), that call lasting for 29 minutes and 46 seconds.
Mr D impressed as a truthful and credible witness, and the evidence of his telephone call to Mr Barbero on 26 February 2016, corroborated by his mobile phone’s tax invoice, is compelling.
The mother’s evidence
The mother’s evidence is found in her Affidavit affirmed 8 September and filed 9 September 2016 in support of her Application in a Case (“the mother’s first Affidavit”), in her Affidavits affirmed and filed 16 October 2017 (“the mother’s second Affidavit”), and 7 December 2018 (the mother’s third Affidavit”), and in her oral evidence at Court.
In her first Affidavit, the mother concedes that she has previously been found guilty of contraventions of the 2008 Orders, but blames that on the fact that X was “too young to make a statement” about his father having hit him at that time.
She deposes that she accepts that she has not provided X for time with his father pursuant to the 2008 orders, but that the reason was Mr Barbero having “assaulted X and I” on 26 February 2016. It was Ms Conners’ evidence that “the father has been charged with four counts of assault and his matter is listed in the Suburb G Magistrates Court on 16 September 2016”.
Ms Conners then sets out her evidence in relation to events she alleges occurred in the lead-up to and on 26 February 2016 as follows:
9. THAT a few days prior to the assault X had asked his father if he could stay at my house for the weekend so he could attend his friend’s H’s (sic) birthday. I understand that the father originally agreed and then changed his mind. X was very upset by this and told his father he would not be coming to his house. On the day of the assault, the father and I had been texting one another. The father was angry that X said he was not coming to his house that weekend. I was upset that the father had abused X on the phone. He had also told X he was giving my mother money for his school books and the like, which was untrue and upsetting to both my mother and myself.
10. THAT on 26 February 2016, X phoned me from his school bus. He told me that he thought his father was driving behind the bus and following him and he was very anxious. I told him if he was worried to get off at the stop after his usual stop, and go straight into the Caltex and wait for me to pick him up. X later told me that he thought his father had stopped following the bus and he hoped (sic) off at his normal stop. Upon doing so, the father grabbed X by the arm and hit him. He was also calling him names. X managed to pull away and jump back on the bus. He then travelled to the stop at Caltex and waited inside for me.
11. THAT soon after X called me, the father arrived at my house. He buzzed at the gate and I told him X was not home from school and to go away. When X did not arrive home at the usual time I decided to go to Caltex to look for him. When I got out the gate, I could see the father at the bus stop. He approached me and lunged at me, while swearing and calling me “a fucking bitch” and “a cunt” and other abusive names. He then grabbed my arm, punched side of my face and grabbed my pubic bone area, between my legs. I managed to scramble back in the car and drive to Caltex to collect X. After speaking to X, I called the police and was advised to come to the police station to make a statement. X was extremely distraught over what had happened. The next day I went to the doctors about my injuries. X was too scared to go to the doctors and speak about what had happened, as his father had told him he would know if he told anyone. A few days later, I convinced X to go to the doctors. X spoke to the doctor about the incident and showed him his injuries. The GP told me that he was obligated to report the matter to the Department of Health and Human Services (“DHHS”).
Ms Conners then annexes to her Affidavit a copy of the same doctor’s notes set out in paragraph 72 above.
It is her evidence that “the matter was investigated and the father was charged with two counts of assault against both X and me”.
She deposes that X was interviewed by the Sexual Offences and Child Abuse Investigation Team at Suburb G after she reported the matter to the police “a few days later”, and that the police made an application for an Intervention Order to protect her and X on the same day. I note from the Application for an Intervention Order by Summons, a copy of which is annexed to the mother’s first Affidavit, that that Application was made on 9 March 2016, the same day that X attended upon his GP, and some 11 days after the alleged incident occurred.
Ms Conners says that “the assault on both X and me has deeply affected him”. She says that he has missed school and has been suffering from migraines as a result of the assault, that he had been seeing his GP regularly, and that he would be seeing her psychologist, Mr A, for the first time on 7 October 2016, which, I note, was some 7½ months after the alleged incident.
It is the mother’s evidence that since the alleged assault, X has made further disclosures of emotional, verbal and physical abuse at the hands of his father “over a long period of time”. She says that X told her that he had not informed her about this because she had been ill and he had not wanted to worry her. It is her evidence that X has told her that his father demands to inspect his mobile phone to see if there are any photographs of the mother on it, that his father often denigrates his mother, and that when his father is angry with him, he sometimes hits him on the back of the head “quite hard”.
In relation to the text messages annexed to the father’s first Affidavit, the mother concedes that she had sent those messages on 26 February 2016, but makes the point that the father has not included the messages he sent to her on that day, “so the conversation can not (sic) be read as a whole. He has also left out the abusive phone calls that he made to me that same day”.
It is the mother’s evidence that X does not want to spend any time with his father, and that he refuses either to see or to speak to him. She says she has attempted to encourage X “to talk about seeing his father with supervision, as I am worried about the long-term impact this may have on him”.
In the mother’s second affidavit, Ms Conners deposes that “the difficult decision” not proceed with the criminal charges against Mr Barbero was made “because X was not in a position to testify in court”. She says that the police prosecutor told her and X that without his evidence “it would be difficult to proceed” with those charges, and that as a result they had been withdrawn. I note again that X’s evidence would not have been needed to support the assault charges in relation to Ms Conners.
In this Affidavit, Ms Conners says that X has been seeing the psychologist, Mr A, “since 30 November 2017[5]”, those sessions being funded through the Victims of Crime system. I note that that evidence differs from her evidence in her first Affidavit that X would be seeing Mr A in October 2016.
[5] At trial, it was the mother’s evidence that that date was incorrect and should have read “30 November 2016”.
In her third affidavit, the mother gives no further evidence in relation to the alleged assault on 26 February 2016, save to say that X has not seen his father since that time, and that the father has “never acknowledged the assault, and this has deeply affected X”.
She does, however, say that X has been seeing Mr A “since October 2016”, and that he continues to see him monthly.
At trial, Ms Conners stated that she had not read her Affidavits “recently”, but that at the time of signing them they had been true and correct.
She was then subjected to what can only be called extremely vigorous cross-examination by counsel for Mr Barbero.
She conceded that she had been angry on 26 February 2016 in the lead up to the alleged assaults, but then modified her response to say that she had been “distressed” that Mr Barbero’s was not going to pay the $300 that she saw as necessary for X’s school requirements.
She conceded that she had involved X in the dispute with his father about his education costs, although it was her evidence that the father, too, had spoken to X about those issues.
When asked whether she thought that involving X in such disputes between his parents might be damaging to his relationship with his father, Ms Conners deflected blame onto the father, saying that he had already involved X in that dispute by telling X that he would pay for costs and then not doing so.
It was her evidence that the text messages attached to the father’s first Affidavit showed not that she had been angry with him on 26 February 2016, but that “it shows the reason why he assaulted us”.
When taken to some of the more abusive texts she had sent the father on that day, she reiterated that she had been “distressed” rather than “angry” when sending them.
She conceded that she had not produced any text messages she received from the father on that day which showed him to have been angry. It was her evidence that Mr Barbero only abuses her on the telephone and not in his text messages “so it can’t be traced … or recorded”. However, she could not point to a telephone call between the parties on 26 February 2016 between the two messages she sent at 3:57 p.m. and 3:59 p.m. which might have elicited her message “Stop abusing me and threatening me on the phone, you coward” sent at 3:59 p.m. She said simply that Mr Barbero had “previously abused me on the phone”, and that he had done so “for the whole of X’s life”.
Counsel then took her to her message, sent at 5:08:35 p.m. on 26 February 2016, which said: “I’ve got you on assault now for grabbing my hand how dare you touch me”.
It was the mother’s evidence that she had sent that message after she and X had been assaulted and she had picked X up from the Caltex station at the bus stop after X’s usual stop.
When it was put to her that she had not mentioned in that text message being “hit in the head” or “grabbed on the crotch”, which counsel stated would have been “the most appalling part of the assault”, she said: “I don’t see why I would have gone into the whole thing at that time”, and then: “Not really something I would like to talk about”.
Nevertheless, she conceded that she had told the police and her doctor about that part of the alleged assault, and that she had included it in her first Affidavit. It was her evidence that she was afraid to talk to Mr Barbero about the assaults.
Counsel then took her to further text messages she sent to the father in quick succession on 26 February 2016, they stating:
5:08:45 p.m. I can not make X go with you
5:09:53 p.m. My arm is killing me how dare you lay your hands on me if you do not stay away from me and abusing me I will get an intervention order against you
5:11:26 p.m. Don’t you dare ever follow X and threaten him again it’s called stalking and you have scared him to death how dare you threaten to sack him
5:11:38 p.m. I will call the police if you don’t stop
It was put to the mother that nowhere in any of those messages does she mention the father assaulting X on that day. She replied that “couldn’t say” why she had not done so, saying she was “distressed” at the time.
However, she then stated that she had had a conversation with the father at the time of his alleged assault on her, to the effect that he should “leave X alone”. I note that there is no mention of that conversation in any of Ms Conners’ Affidavits.
She became indignant at counsel’s line of questioning, telling him: “you’re trying to make me sound like a bad mother”; to which counsel replied: “No. I’m trying to make you sound like a liar, Ms Conners, not a bad mother”. Ms Conners denied that she was lying, saying that she had been in shock when the father assaulted her. She became a little sarcastic and petulant, saying: “I’m sorry that I didn’t act in the way that you see I should have acted”.
Counsel then moved on to the specific allegation that on 26 February 2016, the father followed X’s bus until he alighted from it, grabbed him by the arm and verbally abused him, before X was able to escape and reboard the bus, alighting at the Caltex station where his mother collected him.
When asked why the bus driver was not called as a witness, Ms Conners said that her lawyers had “tried to track him down” but “they mustn’t have been able to find him”. I am sceptical about that evidence, as it would likely have been a fairly simple forensic exercise to ascertain from the bus company the name of the driver who drove the bus X caught at that time on 26 February 2016.
The mother conceded that there is no bus stop at the traffic lights outside the Caltex station, but said that X had told her that he had alighted from the bus at the service station on 26 February 2016 and walked to the Supermarket J at the same location. When asked whether the bus would have stopped other than at a bus stop, she replied that “the kids know the bus drivers most of the time”. That evidence only reinforces the fact that the bus driver was not called to give evidence in these (or the criminal) proceedings.
Counsel then asked the mother whether she believed that Mr D was a liar. She replied that she was not calling him a liar, and explained his evidence by saying that the assaults she alleges to have happened took place between 4:30 p.m. and 4:45 p.m., before Mr D called Mr Barbero at 4:53 p.m.
She was then shown the bus timetable and route map for the … bus route, which she confirmed as the route X takes on school days. Counsel put to her that the bus does not actually stop on the corner of K Street and L Street in Suburb C, where she had claimed to have collected X, and also that there are only two … buses that stop in that area at around that time of day, those being at 4:46 p.m. and 4:55 p.m.
Ms Conners agreed that if she were telling the truth, that is, if Mr Barbero assaulted X and her between 4:30 p.m. and 4:45 p.m. on 26 February 2016, they were the only … buses X could have been on at the time.
She was then taken to the … timetable, which shows that the … bus stops at the corner of B Street and L Street, where she says X usually gets off the bus, at 4:20 p.m. and then not until 5:11 p.m. That is, it does not stop outside her gated community between 4:20 p.m. and 5:11 p.m.
On that evidence, X could not have alighted from the bus at his usual stop, been assaulted by his father, and then reboarded the bus between 4:30 p.m. and 4:45 p.m. as alleged by the mother.
The mother’s evidence about the bus X catches, and the location of the bus stops on the route map, as opposed to where she says the bus actually stops, was confused, contradictory and quite unsatisfactory.
At one time she seemed to be saying that X always caught the … bus, and at another time said he must have been on another bus on 26 February 2016 because “there’s several buses at that time of day with their school buses”. It appeared that Ms Conners was changing her evidence each time she was presented with further evidence that contradicted what she had just said.
Counsel then showed her a copy of her mobile phone records, which, on my reading of them, and in light of counsel tendering X’s phone records for the same day, show the following calls between her number (…) and X’s number (…) on the afternoon of 26 February 2016:
3:45:25 p.m. No answer (Ms Conners to X)
3:47:16 p.m. 1 minute 49 seconds (X to Ms Conners)
3:50:49 p.m. 26 seconds (Ms Conners to X)
4:53:54 p.m. one second (Ms Conners to X)
4:54:35 p.m. two seconds (Ms Conners to X)
4:54:50 p.m. 18 seconds (Ms Conners to X)
Ms Conners agreed with counsel that there were no other calls between her and X on her phone record “in or about this time” and that the only one where X might have had time to tell her about an assault that occurred between 4:30 p.m. and 4:45 p.m. was the 18 second call at 4:54p.m.
Ms Conners was forced to agree that the call from X’s number to her number at 3:47 p.m. on 26 February 2016 was marked as having come from Suburb P on X’s phone record, although she said, in explanation for that, “I guess towers ping wherever they do”. She was further forced to agree that X’s phone records show no calls coming from him to her at any time close to the period within which she says the assaults took place. However, her explanation for that was that “phone records aren’t always exact” and “all I can tell you is what happened, as I know the truth”.
Ms Conners’ evidence, and indeed her whole case in relation to the s.70NAE(5) contravention defence, is based on the allegation that Mr Barbero followed X’s bus in his car, stopped and assaulted him before X broke away from him and reboarded the bus, and then attended at her home saying that he had come to collect X. She says that she told him that X was not at home and that he should leave. He waited for her at the gate to her community, and assaulted her when she left to collect X from the next bus stop at the Caltex station before she broke away, got back in her car and went to collect X.
She could not explain, when asked, why Mr Barbero might have attended at her home asking to see X if he had just assaulted X, saying “well, I assume he came to my house before he got to the bus stop”. That evidence directly contradicts her Affidavit evidence as set out at paragraph 93 above.
Ms Conners then became quite confused as to the time when Mr Barbero had called her intercom buzzer on that day, and as to the sequence of events that she alleged had occurred.
Again, I found that evidence most unsatisfactory.
When contradictions within her evidence, and between her evidence and what she told the family report writer, and between her evidence and what she told the police, were pointed out to her, Ms Conners said that she could not recall precise details of what she had said to whom about the assaults because “I’m on a lot of medication due to my illness[6]. It’s very hard.”
[6] It is Ms Conners’ evidence that she is in receipt of a Disability Support Pension as a result of having undergone major surgery for cancer, and that she has suffered complications from the mesh implants inserted as a result of that surgery.
She could not give any explanation for X’s failure to call her when he reboarded the bus after being assaulted by his father, and denied that the reason for that was simply that the assault had not happened. She could not be moved in that denial, despite several inconsistencies in her evidence becoming very clear under counsel’s cross-examination.
Counsel then turned to Ms Conners’ prior criminal history. She conceded that she had twice been convicted of assaults, twice of stalking and twice of breaching an Intervention Order. She also agreed that two previous partners had taken out Intervention orders against her.
Counsel then named or referred to some seven people, apart from Mr Barbero, who had taken out Intervention Orders against her over approximately the previous ten years, and asked the mother whether that was correct. She replied that it was, and explained her failure to mention those as “I just couldn’t remember all the names, unfortunately”.
She had no answer to the suggestion that she had been charged with and convicted of breaching Intervention Orders on no less than five occasions between 2004 and 2016.
She did not deny that she had applied for and obtained Intervention Orders against previous partners and others, but denied that she has a history of using the legal system to get what she wants.
Ms Conners was asked why she had used 11 different aliases as set out in subpoenaed police records, and, after initially denying that there were 11 and being shown the police record, she essentially said that the different spellings of her name were typographical errors, and that she wasn’t responsible if her date of birth was incorrectly recorded.
When asked what her most recent conviction was for, she replied “Shoplifting”, saying that she had not had “enough money”. She also stated that she had been convicted of “I think four” dishonesty offences, and of wilful property damage as well as the assaults previously mentioned.
Under further cross-examination, Ms Conners admitted that the criminal damage charge and some assault charges had related to conflicts she had with a previous partner, and eventually, and somewhat reluctantly, she accepted that the police records shown to her were hers.
I found the mother a less than satisfactory witness. Her account of several extremely salient facts was contradictory and inconsistent, not only between what she told the court in Affidavit material and what she told the police and the family report writer, but between statements she made in oral evidence at the Final Hearing.
I note at this stage that Mr A, the Psychologist who has been seeing X since October 2016 and who previously saw the mother, filed two Affidavits in these proceedings: one affirmed on 22 August and filed 23 August 2017 (“Mr A’s first Affidavit”) and one affirmed and filed 11 December 2018 (“Mr A’s second Affidavit”).
However, at trial, counsel for the mother advised the Court that Mr A would not be giving evidence. She agreed that Mr A’s evidence would have held more weight if he had seen Mr Barbero as well as X and his mother.
In his first Affidavit, Mr A states that X was first referred to him for a psychological assessment by the mother’s then lawyers on 9 September 2016. That assessment was conducted on 13 October 2016 and X was then referred by his GP to Mr A for treatment of “anxiety pertaining to physical and emotional abuse from his father and an upcoming court date in relation to the assault on Master Barbero by his father”.
At the time of affirming his first Affidavit, Mr A had seen X on seven occasions for treatment.
Mr A records what X told him about the events alleged to have happened on 26 February 2016 thus:
Master Barbero stated that on the 26th February 2016 at 5:15 pm he called his Mother and told her that his Father, Mr Barbero was following behind the public bus that Master Barbero was in. Master Barbero stated that his mother told him to stay on the bus and get off at the Supermarket J bus stop where she would pick him up. Master Barbero stated that as the bus was arriving at the home bus stop he thought his Father was no longer following the bus.
He stated that as he got off the bus his Father appeared and grabbed Master Barbero on his left arm and tried to drag him into his Father’s car. He stated that his Father tried to hit Master Barbero across the face. Master Barbero stated that he tried to get away from his Father. He stated that his Father started yelling and calling Master Barbero a “little Shit” and telling Master Barbero to get into the car. Master Barbero stated that he noticed that the bus driver was waiting at the bus stop and he broke free from his Father’s grip and ran towards the bus and got back on. The bus driver closed the doors immediately and drove to the Supermarket J bus stop. Master Barbero stated that his Father assaulted his Mother while he was waiting at the Supermarket J bus stop.
Mr A deposes that he administered the “Trauma Symptom Checklist for Children” to X, that test measuring “posttraumatic stress and related psychological symptomatology” in children who have experienced traumatic events.
It is Mr A’s evidence that “this profile indicates that Master Barbero is not experiencing Post Traumatic Stress Disorder, depression or anxiety”. Nevertheless, Mr A says that X endorsed one item on the test that indicated that he was sometimes afraid that someone would kill him.
Mr A records that X tells him that he has “distressing recollections of the abuse from his father. He has thoughts and dreams that scare him. He still experiences sensations of remembering the abuse from his father” and that he “has thoughts of his father coming back to hurt him and his family”.
Mr A states that his counselling methods with X include Cognitive Behavioural Therapy and Rational Emotive Therapy, with strategies for “emotional strength building, social life enhancement and situational problem-solving” being provided.
It is Mr A’s evidence that X “had not been able to cope effectively with the physical and emotional abuse from his father. He had become more on edge resulting in him having distress and impairment in social, educational and personal functioning. With the provision of psychological counselling and treatment Master Barbero has been able to cope better with the impact of his father’s abuse”.
Under the heading “Opinion and Recommendation”, Mr A deposes:
Master Barbero has experienced years of physical and mental abuse from his father. He is now a 15 year old student studying year 9 at School M Suburb N. He has exhibited significant resilience and strength in following his dream to be a public servant.
It was Mr A’s opinion at that time that X ought not to be forced to see his father, and that if orders were made for him to do so, “(it) will have a significant detrimental impact on his psychological wellbeing”.
In his second Affidavit, Mr A merely sets out that he has seen X for 14 of the 15 sessions provided to him by the Victims of Crime Assistance Tribunal and that he conducted those sessions monthly. He does not mention the alleged events of 26 February 2016.
Mr A was not required for cross-examination, which means that his evidence has not been impugned and stands as written.
Nevertheless, I note that X was first referred to Mr A not by his general practitioner, but by the mother’s lawyers presumably on the mother’s instructions, and, given my view of the mother’s credibility, that fact might be seen to taint his evidence somewhat.
The father’s case is that X has been so influenced and overborne by his mother that he has come to believe that the story of him being assaulted by his father on 26 February 2016 is true, and if the father is right, Mr A’s evidence takes on a very different hue. It is not in dispute that X did not see Mr A until some eight months had elapsed after the alleged assault. In addition, there is no evidence before the Court that Mr A ever consulted Mr Barbero about X’s treatment.
I also note that X told Mr A that he had called his mother about his father following him at 5:15 p.m. on 26 February 2016 and that the alleged assault on him happened after that phone call. In light of Mr D’s evidence, the evidence of the mother, and the evidence of the mother’s telephone records, that is simply not possible.
That is not to say that X is not traumatised by these proceedings and by the thought of being forced to see his father, who may or may not have treated him less than kindly in general since the parties separated, but those matters are not before the Court at this time.
Conclusion: Alleged breaches of paragraph 8 of the 2008 Orders
The mother was not, in my view, a credible witness in relation to the events of 26 February 2016, and despite Mr A’s evidence, about which I have some misgivings, I cannot find, on the balance of probabilities, that those events occurred as she alleges.
It follows, therefore, that she has not discharged her onus of proving that she had a reasonable excuse for not providing X to spend time with his father pursuant to paragraph 8 of the 2008 Orders at the times and places alleged, and I find that she contravened those Orders on 14 occasions without reasonable excuse as alleged by the father.
The Alleged Breaches of Paragraph 15 of the 2008 Orders
In his Contravention Application, the father alleges that the mother denigrated him to X on 26 February 2016 “as she confirmed by text message”.
In his first Affidavit, the father simply states the following in relation to that allegation:
10. The Respondent texted me on 26 February 2016 to say she told X, I had no respect for her and that I abused her, now attached and marked B9. I deny such behaviour.
Annexure B9 to the father’s first Affidavit contains part of the text message thread I have already set out at paragraph 56 of these Reasons, that part stating:
Indecipherable time. Need to know as I don’t have the money so I need an answer. Otherwise you can explain to him why (indecipherable) needed for school.
11:01:26 a.m. I need an answer Mr Barbero as he needs the books
11:02:04 stop being such an asshole it’s your son’s education what’s wrong with you and to stand and promise to his face any wonder he hates you now
11:32:17 a.m. I need to know today Mr Barbero if you will pay as they have to be purchased he shouldn’t have to go without
11:40:23 a.m. That’s fine I’ll just explain to X I just don’t have the money for the books. And that you have refused to help.
11:40:37a.m. As you made a promise to him I won’t lie to him.
(Message sent by Mr Barbero at 3:02:54 p.m.) Hi X, did you have something on this weekend and wanted to stay at your mum’s?
(Message sent by Mr Barbero at 3:03:26 p.m.) Did he get this message or is his phone still blocked
3:06:52 p.m. He blocked you Mr Barbero as he is angry at the way you spoke to him and not interested in speaking to you. I explained that if you had have had any respect to listen to me and not abuse me and hang up. If X does not want to see you or right to you from now on I can not physically make him you’ve done this yourself.
3:07:26 p.m. I will also be letting him know I am unable to pay for his books because unlike your promised you have refused to help out.
Mr Barbero was not asked any questions about that issue at trial.
Ms Conners was asked about the last of those messages when under cross-examination by the father’s counsel, and it was her evidence that she had not actually told X that his father had refused to help, but had only said that she would do so in her text message. She then denied that that message contained a threat, saying that she was “just making sure my son is aware of the truth”.
Again, those two statements appear to contradict one another in the context of whether she did or did not denigrate Mr Barbero to X.
That is the only evidence I can find about the allegation that Ms Conners denigrated Mr Barbero to X in breach of Paragraph 15 of the 2008 Orders on 26 February 2016.
Conclusion: Alleged breach of paragraph 15 of the 2008 Orders
On the scant evidence before the Court on this issue, I cannot find, on the balance of probabilities, that Ms Conners denigrated Mr Barbero to X on 26 February 2016 as alleged by Mr Barbero, and I therefore dismiss that application on the ground that the father has failed to prove it.
The Alleged Breaches of Paragraph 5 of the 2009 Orders
The allegation in the Contravention Application is that on 20 specified occasions between 1 February 2016 and 24 June 2016, the mother “without reasonable excuse has permitted the child X to miss part of the school day”.
In his Affidavit affirmed 8 August and filed contemporaneously with his Contravention Application on 9 August 2016, Mr Barbero sets out the history of previous proceedings and then simply lists the dates on which he alleges the mother permitted X to miss part of the school day. He provides no evidence in the body of his affidavit to support those allegations, other than to refer to an annexure which contains a document which appears to be taken from the “School” website.
That document states that in 2016, X was registered as absent from school (although whether for the whole day or part of it the document does not say) for the reason of “PChoice – A” on 19 of the 20 occasions alleged by Mr Barbero. I assume that reason means that the absence from school was by the choice of one or both parents of the student.
The 20th date on which Mr Barbero's Application alleges X was not at school for at least part of the day states “Dentist” as the reason.
I note that there are other absences, not alleged as breaches of the 2009 Orders, which have “Med Cert”, “Illness” or “Medical” as the reason given.
There is no evidence in the father’s first affidavit to say whether or not Ms Conners contacted him on the specified days to inform him of or discuss X’s absence.
Rule 25B.02 of the Federal Circuit Court Rules 2001 states as follows:
How to apply for an order
(1)An application must be in accordance with the approved form.
(2)The applicant must file with the application and affidavit that:
(a)states the facts necessary to enable the Court to make the orders sought in the application; and
(b)has attached to it a copy of any order, bond, agreement, or undertaking that the Court is asked to enforce or that is alleged to have been contravened.
The first affidavit filed by the father in relation to alleged breaches of paragraph 5 of the 2009 orders does not even approach the standard necessary “to enable the Court to make the orders sought in the application”. It merely assert the breaches and adds the document.
Nevertheless, the mother’s first Affidavit addresses these allegations by admitting the breach, but claiming a “reasonable excuse as I had not been communicating with the father since the assault”.
Ms Conners deposes that two weeks of the absences claimed were when X “had to have his appendix removed in July 2016”. However, I note that the absences alleged in the Contravention Application occurred between 1 February and 24 June 2016, and do not relate to the period when X was recovering from surgery.
Otherwise, the mother says that X had been “struggling with his emotions and began having recurrent nightmares (after the alleged assault)”, and that he had been seeing a psychologist at that time. She says the school was aware of the alleged assault “and were very supportive”. Ms Conners says that she provided medical documentation to them, but produces no medical certificates as required by paragraph 5 of the 2009 Orders.
She gave further evidence that because X is now over six feet tall, she is physically unable to force him to get him out of bed if he does not wish to go to school.
In other words, Ms Conners’ defence to these allegations is essentially the same as for the contraventions found to have been proven in relation to her non-compliance with paragraph 8 of the 2008 Orders. That is, that X was assaulted by his father and has suffered ongoing mental health issues as a result.
At trial, under cross-examination by counsel for the father, Ms Conners stated that she could provide medical certificates for “most” of X’s absences, but I note that she had not done so before the final hearing and did not do so at that hearing. She blamed her lawyer for not having advised her to annex the medical certificates to her Affidavits or otherwise to provide them to the Court.
Ms Conners claimed that she didn’t realise that X “not attending” was “part of it (the proceedings)”. I reject that evidence as unsatisfactory in the extreme.
As counsel noted, these proceedings, containing all the allegations Ms Conners faces, were issued in August 2016, and she has known the allegations she needed to answer since then. Her rather desperate attempts to claim that the medical certificates were available upon a telephone call to the doctor’s surgery were not convincing.
Ms Conners also underwent cross-examination by counsel for the Independent Children’s Lawyer, who took her to her previous oral evidence that X had been seeing a psychologist during the period when he was missing substantial numbers of days at school.
When it was put to her that that evidence contradicts her own Affidavit evidence that X first saw Mr A in October 2016, some months after the relevant period of absences, Ms Conners became quite flustered and claimed to be confused “because I’m on medication”.
Later in her evidence she told the Court she was taking Mersyndol Forte and Endone as well as anti-nausea drugs which made her “foggy”. I note that Ms Conners has spent some time in hospital in relation to the mesh implants and other matters, and that she is a plaintiff in medical negligence proceedings against the manufacturer of those mesh implants and the doctor who inserted them.
Nevertheless, overall, I found Ms Conners’ evidence in response to the allegations set out in the Contravention Application that she had not sent X to school on 20 occasions without reasonable excuse to be unsatisfactory and not at all convincing. She contradicted herself on multiple occasions and at times appeared to be making up her evidence on the spot. She claimed to have a bad memory whenever she was confronted with these contradictions, and where her evidence conflicts with that of the father on this issue, I prefer that of the father.
I note in that regard that Ms Conners has appeared to give evidence on multiple occasions in the Magistrates and County Courts of Victoria, as well as in at least one previous contravention proceeding in this Court. She is therefore not an inexperienced witness, and to the extent that she sought to claim a lack of understanding about Court processes, I do not accept that evidence.
Conclusion: Alleged breaches of Paragraph 5 of the 2009 Orders
In those circumstances, I find that Ms Conners did contravene paragraph 5 of the 2009 Orders without reasonable excuse on 19 of the occasions alleged by Mr Barbero in that she allowed X to be absent from school without a medical certificate having been provided, or the consent of Mr Barbero, or the school having determined that X’s absence was acceptable in an emergency.
I find that the 20th absence cannot be found to have been a contravention on the balance of probabilities because there is evidence that the school was informed that X was at the dentist on 3 June 2016, and it is probable that they received a medical certificate in relation to that day.
The Alleged Breach of Paragraph 7 of the 2009 Orders
The father alleges that the mother has not paid him the sum of $1500 in costs that she was obliged to pay pursuant to the 2009 Orders.
It is not in dispute that Ms Conners has not paid any part of that sum to Mr Barbero.
Ms Conners’ defence to that breach is that, after the 2009 Orders were made, the parties made an agreement that instead of paying the sum ordered, Ms Conners would forgo child support payments for X until she had forgone the sum of $1500. That agreement and its execution, she says, is her reasonable excuse for not paying the money to Mr Barbero.
Mr Barbero denies that any such agreement was made. At trial, the proposition that such an agreement did exist was flatly and persistently denied by Mr Barbero and he could not be shaken in that evidence.
There is no corroborating evidence to support Ms Conners’ contention. In her first Affidavit, the mother’s reference to this allegation is simply thus:
THAT I refer to paragraphs 82 and 83 of the father Contravention Application and deny the breach. The father told me after the proceedings that he would pay the fine out of the child support he was paying me.
That statement, which is the only reference to this allegation in the mother’s Affidavit material, simply does not make sense. Even disregarding that the $1500 payment was not a fine but an order for costs, it was not Mr Barbero who was to pay Ms Conners anything.
Ms Conners was not asked any questions about this issue at trial, nor did either party’s counsel raise it in submissions.
Conclusion: Alleged breaches of Paragraph 7 of the 2009 Orders
In circumstances where Ms Conners admits that she has not paid the costs ordered by (then) Federal Magistrate Walters on 26 June 2009, where there is no corroborative evidence for her assertion that the parties agreed that she would forgo child support payments until that sum had been reached, where no evidence of forgone child support payments has been provided to the Court, and where the father adamantly denies that there ever was such an agreement, I find that Ms Conners has contravened paragraph 7 of the 2009 Orders without reasonable excuse.
The question of penalty
These are the third set of proceedings where Ms Conners has been found to have contravened Parenting Orders in relation to X.
Previous penalties have included a variation of the 2008 Orders (by consent), and, as a result of the findings made on 26 June 2009, the mother was ordered to “enter into a bond for a period of 18 months in the sum of $1000.00 (but without surety) to: (a) be of good behaviour; and (b) strictly comply with the parenting orders made in the Federal Magistrates Court of Australia on 8 October 2008 and on this day”. As has already been discussed, Ms Conners was also ordered to pay the father’s costs of the 2009 proceedings in the sum of $1500.
She has now been found to have contravened the 2008 Orders for a third time, and the 2009 Orders once.
The law in relation to penalties for proven contraventions is set out in Division 13A of the Act.
Subdivision E of Division 13A addresses contraventions that are said to be less serious.
S.70NEB sets out the powers of the court when the court has made a finding of a less serious contravention as follows:
70NEB(1) if this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b) if the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of any earlier parenting order;
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d) – impose a fine not exceeding 10 penalty units on the person;
(e) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with the person for a particular period); and
(iii) the person referred to in paragraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this division; and
(g) if the court makes no other orders in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
S.70NEC deals with the bond the court may impose under S.70NEB(1)(b):
70NEC(2) A bond is to be for a specified period of up to 2 years.
70NEC(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
70NEC(4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a) to attend an appointment (or a series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
S.70NECA states that, if the court requires a person to enter into a bond, and a court finds that the person has, without reasonable excuse, failed to comply with the bond, the court may impose a fine not exceeding ten penalty units on the person, or it may deal with that situation as though it were a new Contravention Application.
Subdivision F deals with those contraventions said to be “more serious”.
S70NFA states that the court may deal more seriously with a person who it has found to have “behaved in a way that showed a serious disregard of his or her obligations under the primary order.”
S.70NFB then sets out the powers of the court in those circumstances:
70NFB(2) The orders that are available to be made by the court are:
(a) if the court is empowered under section70NFC to make a community service order – to make such an order; or
(b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c) if the current contravention is a contravention of a parenting order in relation to a child – to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
(d) to fine the person not more than 60 penalty units; or
(e) subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
to make an order requiring the person who committed the current contravention to compensate the person referred to in sub paragraph (ii) for some or all of the expenses referred to in subparagraph (iii); or
(g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h) to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
As can be seen, the powers of the court to make orders upon a finding that a person has contravened a parenting order without reasonable excuse are very wide indeed.
I have found that the mother has contravened final orders on no less than 35 occasions, and I note that these are the third findings of contravention made against her.
In Hugh & Sawer [2010] FamCA 290, at paragraph 15, Bennett J set out the principles enunciated by the Full Court in the matter of Elspeth and Peter, Mark and Peter, and John and Peter [2007] FamCA 655 (‘Elspeth and Peter’) relating to what might constitute a “serious disregard” for orders under S.70NFA(2)(b).
Those principles are stated to be:
a) what amounts to a serious disregard will depend on the circumstances of the case and the terms of the order;
b) serious disregard is a description of a degree of intent that is something less than the intent required for a contumacious breach, but something more than the intent present in a finding of a contravention;
c) serious disregard has to be seen as a question of proportion and a question of degree, and [is taken] to require some examination of whether it was premeditated, impromptu or minor in its nature;
d) serious disregard may involve no intention on the part of the respondent to support the primary order and/or an intention to circumvent the provisions of the primary order.
Her Honour then goes on:
16. At paragraph 61 of Elspeth and Peter their Honours observed:
The theme that emerges from an examination of several decisions... is that “serious disregard” tends to be found in cases of deliberate, premeditated noncompliance with orders and continued and protracted breach.
17. At paragraph 66 the Full Court observed:
What seems to be a common thread is that the more serious sanction should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on the first breach does not appear to be sufficient to attract the more stringent sanctions set out under Subdivision F.
The breaches found to have been committed in these proceedings form part of a long pattern of Ms Conners not complying with Court Orders, in both State and Commonwealth Courts[7].
[7] I note in this regard that Ms Conners has been found guilty of breaching Intervention Orders on multiple occasions
The breaches were deliberate and persistent, and as such, they fall within the more serious breaches of parenting Orders under s.70NFA.
I have no doubt that this mother will continue to fail to persuade X to spend time with his father, and indeed it was her evidence at trial that she did not wish X to have anything to do with Mr Barbero.
In that regard, I note that on 19 October 2017 I made orders suspending X’s time with his father at an interlocutory hearing. That means that there can be no further breaches of the 2008 and 2009 Orders like those currently before the Court after that date.
As X is now 17 years old and is due to leave the Court’s jurisdiction on … 2020, in light of his clear determination to avoid his father, and in light of the mother’s attitude to Mr Barbero, I do not find it appropriate to order make-up time for Mr Barbero.
Ms Conners’ financial circumstances are such that she, X and her two youngest children live on Centrelink benefits supplemented by child support payments.
In those circumstances, imposing a fine on Ms Conners would only have a negative impact on her children, including X.
As previously noted, Ms Conners has been found guilty of contravening these Orders before and was place on an 18 month bond by (then) Federal Magistrate Walters on 26 June 2009.
There is no evidence before the Court that she breached that bond in any way.
I will therefore require her to enter another bond, this time for two years, and with a surety, but not security, of $2000. That means that if she is found to have breached Court Orders after this day, she will have to pay the surety of $2000, and she would also be open to further penalties at that time, including the possibility of a fine, or a prison sentence.
Conclusion
This is, in anyone’s language, a sad case. No matter the reasons, X has not seen his father since February 2016, and has been adamant ever since that he does not wish to do so.
Given X’s age, Mr Barbero may have to accept that his relationship with his son has been so badly damaged that it would not be in X’s best interests to force him to spend time with his father.
In those circumstances I will hear submissions from counsel for both parties and from the Independent Children’s Lawyer on what Orders they propose in relation to X’s living and care arrangements for the next nine months, after which he will leave the jurisdiction of the Court.
I certify that the preceding two hundred and thirty four (234) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 26 August 2019
Key Legal Topics
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Family Law
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Breach
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Costs
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Penalty
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