Farrow and Byrnes
[2013] FCCA 2245
•7 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FARROW & BYRNES | [2013] FCCA 2245 |
| Catchwords: FAMILY LAW – Parenting – child’s best interests the paramount consideration – contravention of parenting orders – dispute over time the child is to be collected. |
| Legislation: Family Law Act 1975 (Cth), pt.VII, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 69ZT, 69ZW, 69ZX, 70NAE |
| Jones & Dunkel (1959) 101 CLR 29 Browne & Dunn (1893) 6 R 67 (HL) Rice & Asplund (1979) FLC 90 – 725 Johnson & Page [2007] FamCA 1235 M & M [1988] HCA 68 Deacon & Castle [2013] FCCA 691 Re F Litigants in Person Guidelines [2001] FamCA 348 Stevenson & Hughes (1993) FLC 92 – 363 Napier & Hepburn (2006) FLC 93 – 303 Potter v Potter (2007) FamCA 350 Briginshaw v Briginshaw (1938) 60 CLR 336 W & W (abuse allegations unacceptable risk) (2005) FLC 93 – 235 S & S [1993] NZFLR 657 M v Y [1994] NZFLR 1 Geremia v Harb (2008) 90 O.R (3d) 185 Sup. Ct. J (Gen. Div Fam.Ct) Westpac Banking Corporation & Cutajar [2011] FamCAFC 157 |
| Applicant: | MR FARROW |
| Respondent: | MS BYRNES |
| File Number: | CAC 869 of 2011 |
| Judgment of: | Judge Harman |
| Hearing date: | 7 November 2013 |
| Date of Last Submission: | 7 November 2013 |
| Delivered at: | Canberra |
| Delivered on: | 7 November 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Barker & Barker |
| Solicitors for the Respondent: | Self-represented |
ORDERS
The application in a case filed by the mother on 7 November 2014 is dismissed and removed from the list of cases awaiting hearing.
It is declared that the orders presently operating with respect to the child X born (omitted) 2011 and more particularly the child’s time with the father are orders 4(c) onwards of the orders made on 12 September 2012 and as varied hereby.
Order 4(c) of the orders made on 12 September 2012 is varied so as to provide that X shall spend time with his father from now and until his third birthday each Monday and Tuesday from 8.30am until 3.30pm.
Order 4(d) of the orders made on 12 September 2012 is varied to provide that from the child attaining the age of 3 years, the child shall spend time with the father from 10.00am on Saturday until 10.00am on Sunday each alternate weekend commencing Saturday 22 February 2014 and in addition each Tuesday from 4.00pm until 6.00pm the first period to commence 25 February 2014.
Order 11 of the orders made on 12 September 2012 is varied to provide as follows:
“That changeovers that do not occur at X’s school are to occur in the Food Court (omitted) Mall.”
I find that MS BYRNES has failed without reasonable excuse to have complied with orders made by this Court 12 September 2012 on each of:
(a)8 January 2013;
(b)14 January 2013;
(c)21 January 2013;
(d)22 January 2013;
(e)28 January 2013;
(f)29 January 2013;
(g)4 February 2013;
(h)5 February 2013;
(i)11 February 2013;
(j)18 February 2013;
(k)19 February 2013;
(l)25 February 2013;
(m)4 March 2013;
(n)5 March 2013;
(o)11 March 2013;
(p)18 March 2013;
(q)19 March 2013;
(r)25 March 2013;
(s)26 March 2013;
(t)1 April 2013;
(u)2 April 2013;
(v)8 April 2013;
(w)9 April 2013;
(x)15 April 2013;
(y)22 April 2013;
(z)23 April 2013
(aa)29 April 2013;
(bb)30 April 2013;
(cc)6 May 2013;
(dd)7 May 2013;
(ee)13 May 2013.
I find and record a contravention of the order on those dates same having occurred without reasonable excuse.
By consent and pursuant to section 70NEC of the Family Law Act 1975 MS BYRNES having been found to have contravened orders of this Court on 31 occasions shall be required to enter a bond for a period of two (2) years from today’s date without security but with self surety of $3,000 and thus that upon any finding within the period of two (2) years from today’s date that a breach of the bond has occurred that a sum of $3,000 shall be forfeited to and the bond shall, in addition, require Ms Byrnes to:
(a)Be of good behaviour;
(b)Comply with such orders as are in force with respect to the child X born (omitted) 2011 including but not limited to orders with respect to that child’s time with the father; and
(c)To forthwith and within seven (7) days contact the appropriate intake officer of the Marymead Centre for the purpose of arranging and attending the first available and offered intake appointment to assess Ms Byrnes’ suitability to enrol in, attend upon and complete a post separation parenting orders program designed to assist her in understanding the importance of compliance with orders of the Court and to act in accordance with the child’s best interests and subject to assessment of suitability to participate in such program, Ms Byrnes shall then attend at such times, dates and places and pay such fees as may be levied to enable completion of that course. The bond is to be entered with the Court no later than 4.00pm on 8 November 2013.
IT IS NOTED that publication of this judgment under the pseudonym Farrow & Byrnes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 869 of 2011
| MR FARROW |
Applicant
And
| MS BYRNES |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are proceedings with respect to contravention of a parenting order.
The primary order to which the contravention relates is an order made 12 September 2012 by Federal Magistrate Brewster, as he then was. The order relates to care arrangements for a child X born (omitted) 2011. He is not quite three years of age.
Notwithstanding his age X has, since (omitted) 2011, when he was approximately four months of age, been the subject of unremitting litigation between his parents.
It is not surprising perhaps that the evidence thus refers to a significant number of interventions, medical and otherwise, with respect of this child, including investigations as to whether the child falls within the Autism Spectrum, concerns with respect to his behaviour and demeanour generally, concerns with respect to his health, of myriad and varied types, as well as attendances upon specialist medical practitioners. In addition, there have been a myriad of attendances upon departmental welfare officers from the Australian Capital Territory Department of Community Services, as well as Australian Federal Police.
These parties, as I have observed to them during their submissions, would appear to feel, one or both, that they are contestants in a reality Television program. They have a near daily episode to share with the world and the Court in particular.
The primary order
The primary order provided for a staged arrangement of time spent by the child with the father. It commenced from the date of the order, 12 September 2012 until 17 February 2013, with two periods of four hours each week at a time agreed between the parties, but in default of agreement from 1.30pm to 5.30pm.
The order then provided for periods from 17 February till 17 August 2013 of six hours each per week and being two periods, again, as agreed or failing agreement, 11.30am till 5.30pm on Mondays and Tuesdays. Thereafter the order provided, from 17 August and until the child attains the age of three, on 17 February next year, two periods of seven hours each to continue until the child attains that age. That portion of the order does not provide for, nor specify, a default provision, but relies upon the agreement of the parties. That is clearly something that has been addressed by subsequent Orders to which I will turn shortly.
From the time the child turns three, in three months’ time, he is then to spend time with his father each alternate weekend from 10am Saturday until 10am Sunday and for what is expressed as “two hours on Monday each week to be agreed, but failing agreement from 4pm till 6pm each Tuesday”.
From the child attaining the age of three and a half years, which, for the sake of avoiding further conflict and disagreement between these parties, clearly would be 17 August 2014, time will extend so that alternate weekend time will be from 10am Saturday until 5pm Sunday. There are then further progressions which I need not canvas for present purposes.
The primary order operated unaltered and uninterfered with until 14 May 2013. On that date, and in response to an Application by the child’s mother, an order was made in the following terms,
that order 4B, [that portion of the order that dealt with the period 17 February to 17 August 2013] is varied to delete the words “at a time to be agreed, but failing agreement from 11.30am to 5.30pm.
The mother opines in one of her many Affidavits that this would have resulted in the father having no time with the child. Thus, she asserts that she contacted the Court and as a consequence an amended order was issued pursuant to the slip rule and which deleted only the words “at a time to be agreed but, failing agreement”, thus the order read, “For two periods of six hours each week from 11.30am until 5.30pm.”
A further variation occurred on 7 June 2013. On that date, an order was made in the following terms:
That the orders made on 12 September 2012 as varied by orders 14 May 2013 are varied to provide that the father spend time with the child each Monday and Tuesday from 8.30 am until 12.30 pm.
That variation would appear to reflect the zealous position that the mother represented to the Court. Indeed, so zealous that it has involved indication in writing, not only to the father and his attorneys but the Court, that unless time was ordered to commence at 8.30am that it simply would not be permitted to occur.
The Orders of 14 May 2013 were the subject of an appeal by the mother. There is suggestion in some of the material, which I shall identify in detail shortly, to an appeal from the primary order 12 September, 2012.
There is upon the court file a Notice of Appeal filed 21 May 2013. Whilst the mother had indicated that both Orders (12 September, 2012 and 14 May, 2013) were appealed against, the notice has no reference to the Orders of 12 September 2012. Indeed, the appeal could not have been filed with respect to those Orders, the appeal being filed some eight months after the primary order was made and thus an application for leave to appeal out of time by way of an application in the appeal would have been required.
In any event, the appeal against the Orders of 14 May 2013 was dealt with on 5 November 2013 being two days ago.
It is common ground that the appeal was dismissed. The mother asserts that the dismissal of the appeal was on the basis that the order that she sought to appeal against had itself been discharged or varied by the Orders which were subsequently made on 7 June 2013. I am content to take the mother on face value for that purpose.
The mother also asserts, however, that opinion was offered to her by the Judge hearing the appeal (and no transcript or copy of any reasons for judgment or order are available) that as a consequence of Orders made 14 May 2013 and 7 May 2013 that the Orders of 12 September 2012 had no force or effect ab initio.
I will return to that issue as regards its relevance and application to the Contravention and Application in a Case now filed by the mother and the ongoing time that would be spent by the father with this child in the future.
It is also curious to note that the appeal filed by the mother set out three grounds of appeal and which provided:
(1)Father having unsupervised time with the child as child was harmed in father’s care and child has delayed expressive function.
(2)Father having joint parental responsibility as child requires ongoing treatment. The father and I cannot agree on anything.
(3)If father is to have unsupervised time then it must be mornings to accommodate the child’s sleep not the father’s partner’s work schedule
The orders that were sought by the mother in the event that the appeal was successful are identical to the orders that are sought by her today. They are also identical to the orders that have previously been sought both in the proceedings which gave rise to the primary order and in a subsequent application initiating proceedings and application for stay made by the mother.
The mother seeks today, sought on appeal, sought in the primary proceedings and sought in her Initiating Application and Stay Application, that being now on five separate occasions, orders as follows:
(1)Mother to have sole parental responsibility.
(2)Child to reside with mother.
(3)Father to have supervised time with child.
The nomenclature of the relief proposed by the mother on this occasion is slightly different but with the same net effect.
The parties to the proceedings
As would be apparent, these are proceedings between the parents of young X.
The moving party in the Contravention Application is X’s father, Mr Farrow.
The Respondent is X’s mother, Ms Byrnes.
Ms Byrnes has also filed this morning an Application in a Case and extensive Affidavit seeking variation of all Orders, whichever may presently be in force relating to the child and with the effect that the child would spend time with the father at a supervised contact centre, if at all.
The mother proposes in the Application in a Case filed today that contact be supervised in accordance with “Marymead’s policies,” Marymead being a service providing counselling and family dispute resolution as well as supervised visitation.
That Application was only served upon the father and his attorneys at the bar table when the matter was called shortly after 9.30am this morning. However, it arises from almost identical, if not identical, evidence and raises the same issues particularly a suggestion by the mother that the child is exposed to an unacceptable risk of harm in the father’s care or unsupervised care.
The Application which thus brings the proceedings before the Court today is the father’s Application for Contravention filed 14 May 2013.
That Application was in fact filed on the very day that the proceedings were before the court in response to the mother’s applications for variation and stay of the primary orders. A variation of orders was made by consent that day (not changing the substance of the order but more clearly defining the time to occur).
The variation of orders on that day occurred in response to an application initiating proceedings filed by Ms Byrnes on 15 January 2013.
A separate Application was filed and determined and dismissed, seeking a Stay of Orders. The Application for stay of orders had been filed earlier and had been dealt with and dismissed on 22 October 2012.
The folio of the file would suggest that on 24 September 2012 an appeal had been filed by the mother from the primary Orders but there is nothing contained within the file or the affidavits of the parties to suggest what occurred with that appeal.
On 14 May 2013 the mother’s application initiating proceedings, seeking to vary the primary order, was determined. The mother had sought in that application that the child reside with her, that she have sole parental responsibility and that the father have only supervised contact with the child.
The father’s Response, filed 22 February 2013, sought dismissal of that application and an order for costs.
The consequence of the determination made by Judge Brewster on 14 May 2013 was, I am satisfied, a determination on its merits of the mother’s application which sought discharge and variation of the existing primary order and the imposition of requirement for supervision for any time that the father was to spend with the child.
Thus, on that basis, I am satisfied that there is potentially an issue that the mother’s application, as it presently stands before me, has already been heard and determined on its merits and, thus, my jurisdiction would be functus.
I have indicated to the parties that material relating to some portions of those determinations particularly the Reasons for Judgment of Judge Brewster with respect to determination, 14 May 2013, have been considered by me. However, I make clear that whilst that has received into evidence, I have not drawn any conclusion of fact from that transcript, as section 69ZX(3) of the Family Law Act 1975 (Cth) might permit, save to note that His Honour had dealt with and considered the same material save for the mother’s most recent Affidavit filed this morning. That Affidavit was before me and relied upon by the mother with respect to both establishing a reasonable excuse with respect to the alleged contraventions, they being 34 in number (although 1 count was withdrawn), as well as in support of the Application in a Case seeking variation of the primary order.
Material considered
In these proceedings I have read and considered each of the following documents:
a)the Application for Contravention filed 14 May 2013;
b)the father’s Affidavit sworn or affirmed 14 May 2013, filed the same day;
c)the father’s Affidavit sworn or affirmed 31 October 2013, filed the same day;
d)the mother’s Initiating Application filed 15 January 2013;
e)the father’s Response thereto filed 22 February 2013;
f)the mother’s Application in a Case filed 7 November 2013;
g)the mother’s Affidavit filed in support of an application initiating proceedings on 15 January 2013;
h)the mother’s Affidavit filed 23 April 2013;
i)the mother’s Affidavit filed 23 May 2013;
j)the mother’s Affidavit filed 7 November 2013;
k)a section 69ZW Report provided to the Court dated 18 March 2013, having been provided by the ACT Care and Protection Service;
l)a similar Report provided by the same service, 8 April 2013;
m)a Child Dispute Conference Memorandum, 1 July 2013;
n)the primary Orders made 12 September 2012;
o)the Orders and amended slip rule Order issued 14 May 2013;
p)the Orders made 7 June 2013;
Which orders are in operation at present?
For the purpose of the contravention it is not necessary for me to determine which Orders presently operate. There is no controversy that for the relevant period between the first alleged contravention, that having been on 8 January 2013, and the last alleged contravention, 13 May 2013, that the primary order, that made 12 September 2012, operated without variation, amendment or suspension. Thus whilst portions of the order or, for that matter, all of it may have ceased to operate, it was in operation at the relevant dates alleged.
The Orders made on 14 May 2013 are clearly confined to a variation of order 4(b) of the Orders made on 12 September 2012. That is apparent from the face of the document as it refers only to order 4(b). That is also apparent from the Reasons for Judgment delivered by Judge Brewster that day.
The Reasons for Judgment are also somewhat illuminating as to the material that is presently available. His Honour indicates at paragraph two of the Reasons for Judgment that the father’s Contravention Application before me today for determination, is stayed until such time as the parties have attended mediation and, I infer, until such time as the appeal against the Orders had been concluded. Thus each of those conditions is now completed.
The parties have not attended mediation, although the Act does not use that term. They have attempted to attend family dispute resolution, but it has been assessed as inappropriate. Thus, I am satisfied that all that is required to be done by the parties has been done in that it is a matter for the family dispute resolution practitioner, indeed their obligation under the relevant regulation, to assess practicality and suitability, and to not proceed absent positive assessment of suitability.
The parties have also attended a Child Dispute Conference which, whilst in no fashion mediation, is probably as good as these parties will do as regards any attempt at discussion and resolution. Indeed, one portion of Ms Byrnes’ evidence which I can accept is that the parties have little ability to communicate and resolve difficulties, for a variety of reasons which need not be canvassed herein.
The Reasons for Judgment also make clear that His Honour had available to him section 69ZW Reports from the ACT Care and Protection Agency. Judge Brewster suggests at paragraph three of the reasons:
That report revealed that there was no substance to the allegation and there was no risk to the child in having unsupervised contact with the father.
As I have indicated, I do not propose to rely upon His Honour’s findings, not because I cavil with them or have any issue with them in any way. I have read and considered the evidence, which by and large is the same as that considered by His Honour, and I have formed my own independent conclusion with respect thereto.
His Honour also notes at paragraph four, which observation I concur with from my own independent assessment of the evidence, as follows:
The mother told me that Care and Protection had advised her that she should refuse to comply with my orders for unsupervised contact. I invited Care and Protection to become involved in the litigation if this was the case. Care and Protection wrote to the Court stating that at no stage did they advise the mother in the terms she alleges.
The subsequent Orders of 7 June 2013 are expressed as “varying the orders of 12 September and as varied by the orders of 14 May 2013”. Thus if one considers that phrase in its totality, the Orders of 12 September 2012 were varied by the Orders of 14 May 2013 only to the extent of order 4(b). Accordingly, and whilst there may be some controversy between the parties as to their interpretation, I am entirely satisfied that His Honour’s intent and the effect of the order made by His Honour on 7 June was to effect a further variation of order 4(b) of the Orders of 12 September 2012 and nothing else. Indeed, I am satisfied there is no other reasonable interpretation available from the order of 7 June 2013, referring as it does to a chain of variation.
On that basis I am satisfied that the Orders that continue to operate are the Orders of 12 September 2012 save for order 4(b) thereof, which is now replaced by the Orders of 7 June 2013. Thus, until 17 August 2013, which date has now passed, the father was to spend time with the child, from 7 June when the order was pronounced, until 17 August 2013, from 8.30am until 12.30pm.
Since 17 August 2013, time has been increased, so it is two periods of seven hours each week, although no default or clear provision is included. I will, to avoid dispute between these parties and in reliance upon the determination of one or other of the applications before me, clarify that omission and ensure that the order clearly specifies the commencement and completion of the period of time that is to occur and that will then be a period of seven hours commencing at 8.30am.
Explanation of the process
The mother is self-represented.
The proceedings were listed before the Court yesterday. The mother did not appear on that date. The National Enquiry Centre and/or Registry were contacted to be advised by the mother that she was ill and could not attend.
Subsequently, the Court has received, it would seem sometime earlier this morning, a medical certificate dated 6 September 2013 with respect to the mother’s health. Curiously, it is issued by a medical practitioner whose practice is located some metres from the court building. It is some distance from the mother’s home.
The mother clearly was able to transport herself to the medical practitioner yesterday but was unable to move herself the remaining metres to come to the Court. But as the expression goes, “if the mountain will not come to Mohammed, Mohammed will go to the mountain”.
Yesterday the mother was contacted by telephone and appeared thereby. That was a problematic experience, as the mother did want to speak over others when they were speaking. Those difficulties are made all the greater when telephone communication rather than face to face communication is involved, and thus simple oral and physical prompts cannot be detected.
In any event, the certificate provided yesterday indicated:
Ms Byrnes is, in my opinion, suffering from medical illness and will not be fit for duty on 6 November 2013.
That is the extent of the evidence, if it might be so described.
The mother appeared this morning, indeed, appeared well before 9.30am to attend upon the filing counter and to file her Application in a Case and Affidavit seeking the Orders already recited.
When the case commenced at 9.30am or shortly thereafter, I sought to discharge my obligations pursuant to Re F Litigants in Person Guidelines [2001] FamCA 348 and explained, consistent with the approach helpfully and thoroughly stated by the Full Court in Westpac Banking Corporation & Cutajar [2011] FamCAFC 157, that which would occur with the proceedings, the nature of the proceedings, that which was required to be proved and by whom, the standard of proof that would apply to the proceedings as set out in the relevant division of Part VII of the Family Law Act, and to put each and every one of the allegations to the mother to seek her admission or denial.
When the proceedings were first called I had sought to explain the application and the process of hearing to Ms Byrnes and to that end I incorporate that explanation herein and as follows:
I need to make clear to you that an application for contravention is different to other applications under Part VII of the Family Law Act which deals with parenting orders. It is not a criminal proceeding but, in some fashions, it resembles one, but it is not and never becomes one. It is an application that raises allegations and seeks orders which are restorative or compensatory.
It is an application which makes allegations that a person has knowingly, and without reasonable excuse, failed to comply with an order made by this court, and such that the court’s attention is drawn to said alleged breach and with a view to there then being, if it is positively determined as proven, the imposition of an appropriate remedy, whether that is punitive, i.e. fines, imprisonment etcetera, or any other remedy, including costs orders, orders for compensatory time to make up that which has been lost, a bond to comply with orders and be of good behaviour and keep the peace, and/or orders for participation in courses, programs or other services within the community to seek to ensure the breach does not arise again.
Accordingly, whilst it is still a Part VII proceeding and thus is governed by section 60CA, which indicates that the child’s best interests are, at all times, the paramount consideration, including with respect to the imposition of any penalty or remedy, it is not an application that proceeds in the normal fashion, nor is it an application to which section 69ZT, a provision which removes the application of certain portions of the Evidence Act 1995 (Cth), applies.
The application has a process which must be followed, set out in a number of authorities, including a Full Court decision of Westpac v Cutajar which makes very clear that I need to make sure that you are aware of the allegations against you. I need to make sure that you have the opportunity of testing the evidence of the applicant so that if you wish to cross-examine him about any matter you can.
Without wishing to make it sound like a criminal proceedings, but purely by way of analogy, it is very similar, in terms of cross-examination on allegations in a case such as this, to the Police and Criminal Evidence Act 1987 (UK) warning that you would receive, if you were arrested in England,” anything you say can and will be taken down and may be used in evidence against you. Anything you fail to say when questioned but later seek to rely upon in Court may harm your defence”, i.e. if you don’t put matters to Mr Farrow that you allege, and he doesn’t have the chance to comment upon them, I am not entitled to, and ordinarily should not accept your allegation as proven because Mr Farrow has not had the chance to address it.
That arises from a body of case law usually referred to by reference to one case in particular, Jones & Dunkel (1959) 101 CLR 29.
There is also an issue that arises that if you do not put something to the court, and do not give Mr Farrow the opportunity thus to know that you’re putting it to the court and to respond to it. The rule in Browne & Dunn (1893) 6 R 67 (HR) also applies, which says anything that you have not introduced, anything that you have not given Mr Farrow the opportunity to address in combination of those two cases says that I should treat it with some real caution and, in all probability, reject it as evidence.
In contravention proceedings you have a right of silence. Thus Mr Farrow has to prove his case to a point whereby the court is satisfied and thus, at that point, gives you the opportunity to respond, should you wish, that his case is made out.
These are civil proceedings and accordingly everything that is done occurs on the civil standard. What I mean by that is the criminal standard says that you have to prove everything beyond all reasonable doubt meaning that I must be left with no shadow of a doubt that what he has alleged is true.
The civil standard is the balance of probabilities which says I need to be satisfied that it is more probable than not. It is not a mathematical equation but beyond all reasonable doubt is getting us up into the high nineties of percentages. It’s 99.5 per cent likely that what he says is true. Balance of probabilities is somewhere between 50.5 per cent and 99.5 per cent. It’s a sliding scale. There is some case law about it but it’s now part of the Evidence Act, section 140, that says the standard to which I must be satisfied as more probable varies depending upon the consequence of the finding and the issue in dispute. So if the consequence of the finding is that I’m being asked to impose a pecuniary penalty upon you, fine you, make a costs order or send you to gaol then the extent to which my satisfaction that it is probable increases as well. So it starts to approach but never quite becomes beyond all reasonable doubt.
The reason I start with that point is because you have filed a number of affidavits since the contravention at least two of which specifically refer to the contravention and say that you are responding to matters. So it’s a matter for you whether you want me to read those affidavits at all or whether you want me to read them before we start the case because you have a right to require Mr Farrow to prove his case before I read or consider any evidence whatsoever from you. So I will come back to that issue shortly.
The other things that have to be proven by Mr Farrow are that there was an order made by the court, that it remains in force or remained in force at the time of the alleged contravention, thus, to that extent I appreciate there is an issue you would appear to wish to raise, arising from yesterday’s telephone attendance, to suggest that following the making of additional orders by the court on 7 June, and prior to that in May 2013, that the orders made in September 2012 have no force or effect. That is an interesting legal argument that we will come back to and deal with but there are allegations that pre-date those orders.
The fact that the order may have now been discharged does not necessarily preclude an application relating to its contravention, i.e. if the order was in force as is alleged in Mr Farrow’s material, 8 January 2013, as to which there can be no dispute, then the contravention can proceed even if that order no longer exists because the order existed at the time of the allegation. So there are a myriad of allegations that pre-date the first order purporting to vary, not discharge, the orders made on 12 September 2012. So between 12 September 2012 and 14 May 2013 any allegation contained in Mr Farrow’s material – and I’m turning the pages finding where they end, there’s quite a few of them so far, they can all proceed irrespective of any argument or issue as to whether, from 14 May onwards, that order was no longer the operative order.
Mr Farrow needs to establish the existence and the force and effect of the order as at the date that he alleges it was contravened. He then must establish that he did what was required of him, that you did not do what was required of you and that, based upon this knowledge and information, and that which might arise from any cross-examination of him by you, that you had no reasonable excuse for not complying.
Reasonable excuse has a very clear and specific meaning within the Family Law Act. I appreciate you’re not a lawyer, and part of my obligation arising from a case called Re F: Litigants in Person is to ensure that I explain, in language that people are likely to understand, the matters that the court has to consider.
I cannot and I do not think that it’s possible to, in five minutes, to give you a sufficient understanding of the law and court process to put you in the same position as Mr Ridge, but I will ensure, as best I can, that you are following the process.
A reasonable excuse under section 70NAE can be a number of things. It is possibly because you did not understand the existence of the order or your obligations under it. Otherwise it arises if a person believed, on reasonable grounds, that the actions alleged to constitute the contravention, i.e. their withholding or interfering in the collection of the child, was necessary to protect the health or safety of a person, and that the period for which the contravention occurred was for no longer than was reasonably necessary in the circumstances to protect that person’s health or safety.
They are, broadly, the grounds to establish a reasonable excuse.
So if Mr Farrow gets to the point whereby, based on his evidence, cross-examined upon it, as he may or may not be by you, establishes those elements, that there was an order, you knew about it, you understood it, you didn’t do what was required of you under the order and there is no evidence available to suggest that there would be on a reasonable basis, as defined in those sections, then his case is proven subject to your case in reply.
At that point you have the opportunity, should you so desire, and again you have a right to maintain your silence, to present a case in reply, or a defence, or a rebuttal, however you may choose to refer to it. That would then involve you giving evidence either from reading the affidavits that you have filed, giving oral evidence or both but it also means that Mr Ridge is then entitled to cross examine you with respect to your evidence.
At the end of your evidence I have to determine whether I am satisfied that you have made out a reasonable excuse and thus rebutted the case that Mr Farrow had previously established. If you do so there are a number of things that can happen.
Under the Family Law Act there are four different categories of contravention, the most serious of which is an allegation that you have shown a blatant and flagrant disregard for the court’s authority by failing to comply with the order. That can arise in a number of circumstances, either the proximity of the contravention to the order, i.e. if the order is made and the very next day it is not complied with, that ordinarily would be a flagrant breach. It can arise from other circumstances which we will come to and that each of you can address upon when we get to them, including, for instance, having made application in reliance upon the grounds that you rely upon as a reasonable excuse, which has already been dealt with and dismissed by the court, as would appear to have occurred when Brewster J dealt with your application initiating proceedings, and that your contravention has continued notwithstanding that the Court has reviewed your material and not accepted that it should or that it warrants a variation.
It can also arise from an accumulation of suggested contraventions, i.e. one contravention, even if it’s close to the order, probably isn’t a flagrant breach but 40 or 45 of them probably are. In any event they are matters we will come to. The relevance of it is purely with respect to penalty.
If there has not been a previous established contravention then unless the court finds that there is a flagrant disregard of the court’s authority, I am precluded from imposing a pecuniary penalty, i.e. I should not fine you and I cannot send you to gaol I don’t, in saying that, suggest that is what I would do in any event even if it were established as a flagrant disregard, and with respect to any penalty, whether it’s fines, imprisonment, make up time or anything else, I have to be satisfied that it is in this child’s best interests for that to occur. So it is rare and unusual, and I am not trying to put the fear of God into you, simply making clear that it is something that the legislation says that I can, in some circumstances and must, in those circumstances, turn my attention to.
The penalty, if it is a pecuniary penalty, is potentially a fine of $6600 and up to 12 months in prison for each and every offence, i.e. cumulative. If there are 10 contraventions established they potentially attract a fine of $66,000 and 10 years in gaol but, again, I’m not suggesting that’s what would occur.
If it is not established as a flagrant breach or a more serious breach, then different considerations apply. I must then be focused upon imposing a penalty that will, as far as possible, ensure compliance with the order in the future.
I can effect a variation of the order. That means I can change it however seems necessary, and with a focus upon not only the child’s best interests but remedying any aspect of the order that might inhibit future compliance. In other words, I am entitled to re-write the order but not holus-bolus. It’s not starting again and having a whole new hearing.
It’s addressing the order so that if, for instance, somebody has said – and it doesn’t apply to your case, it’s just an example - the difficulty I have in getting the child to the changeover point is that I don’t have a car, I’m dependent on public transport and accordingly I find it very difficult to get there at that time because I’m meant to be somewhere that’s 40 minutes away from the child’s school at 3.30pm and the child finishes school at 3 o’clock. In that case the result might be to say, well, let’s change the order so that dad picks the child up from school, that way there won’t be any reason for you to have problems with transport in the future and it won’t happen again.
I can impose a bond, subject to, it needs to be explained to you by someone other than me, usually a Registrar of the Court, prior to your entering into it. If you refuse to enter into it there are certain consequences potentially that flow from that.
I can make orders for parties to participate in parenting programs, whether it’s just you, whether it’s you and Mr Farrow or just Mr Farrow for that matter. I can make orders that require you to file an application for variation. I don’t need to do that because you’ve already done it this morning and, subject to the issue that we will come to and address in due course as and when we need to, as to whether in fact I am precluded from hearing that because the issue has already been dealt with by the Court, which is a legal issue, or whether I should not deal with it because there is no substantial and significant change in circumstances since the order was made which would warrant yet another hearing of this case because I don’t know how many hearings there have been, I don’t know how many applications there have been but there are three volumes to this file so it has been going on for a little while.
But fundamentally we need, at the very beginning of the case, to put each allegation to you so that you can respond to it to indicate whether it’s admitted or not admitted.
Those which are admitted then become a matter purely of your presentation of a reasonable excuse. You are not obliged to make any admission against your interests.
As I indicated, you have a right of silence. Whilst this is not a criminal process, it looks remarkably like one in many respects, including your right to silence. You need make no admission whether that is to the existence of the order, although, as Mr Ridge has pointed out it, would be somewhat difficult for you to seek to suggest that you weren’t aware of the order when you have filed now two applications seeking to vary it and an appeal to the Full Court of the Family Court contesting the order.
But in any event you’re not obliged to make the admission. You can admit service or Mr Ridge can prove it. You can admit your understanding of the order, or that can be the subject of evidence.
You can admit that you did not comply with the order on any of the given dates, which we will come to in just one moment, or not. Then it’s a matter for Mr Farrow to establish them based on his evidence.
You can admit that you had no reasonable excuse or you can assert that you had one, they are all entirely your choices.
If you make admissions then they will be appropriately recorded with respect to the allegation raised, and those will proceed differently to those with respect to which you do not make admissions.
Putting the allegations
Each of the 33 allegations pressed were then put to Ms Byrnes in the following terms:
It is alleged that at [time] on [date] that you did, without reasonable excuse, fail to make the child, X, available to spend time with the applicant. Do you admit that allegation or deny the allegation?
The mother elected to respond with respect to each allegation and each allegation was admitted.
I had raised with the mother that the allegations, as put to her, were that she had failed on each of the 33 occasions to comply with the order and had failed to do so without reasonable excuse. Clearly the mother’s admission was as regards non-compliance rather than absence of excuse. Thus, I made clear to the mother and for that matter the father that I would accept her admission only as to non-compliance, not the absence of reasonable excuse.
The mother’s adjournment applications
The matter was then stood in the list to allow other matters to be dealt with. When the matter was recalled after a brief morning tea break, the mother suggested that she was ill and was suffering from gastroenteritis. Indeed, she had indicated that the preceding day. She suggested that she had twice vomited in the toilets of the Court and felt so unwell she needed to attend upon her medical practitioner.
At approximately 11.30am the proceedings were adjourned and stood till 12.30pm to allow the mother to do just that, attend upon her medical practitioner. The mother was cautioned to ensure that she obtained a far more detailed assessment and report than had been provided on 6 November 2013.
A report was provided to the Court by Ms Byrnes’ mother and in Ms Byrnes’ absence. A copy of that tendered was provided to the attorneys of the Applicant.
The report is somewhat curious. It provides a brief report suggesting:
Ms Byrnes is, in my opinion, suffering from acute gastroenteritis and has a fever, rapid pulse and raised blood pressure. She will not be fit for duty [whatever that is intended to mean] from 7 November 2013 and will be able to commence work on 11 November 2013.
It is to be noted that these proceedings involve neither duty nor employment. In any event, I will take the certificate as a suggestion that Ms Byrnes is not fit to attend Court.
I am conscious that Ms Byrnes is self‑represented, although she has been self-represented for some little time in proceedings before this and the Full Court.
I am also conscious of principles established as far ago as 1653 by Freeborn John Lilburne that a litigant before a Court should not be unduly distressed or inconvenienced by the process and must be given comfort.
Also attached to the report is a “patient medical history” suggested to date from 5 to 7 November 2013. It deals with yesterday’s attendance upon the good doctor as well as today.
With respect to the attendance upon the doctor on 6 November, it concludes with:
Finished assignments. Now just a few exams. Not worried about them. Meant to be in Court today. Again, not especially worried.
For today, the history suggests that:
Patient arrived distressed due to Court and illness. Required support to nurse’s room. Very pale and slightly clammy.
It is suggested that a temperature of 37.6 is recorded, (although that would appear to be far from meeting any relevant criteria for fever), and goes on to corroborate that which Ms Byrnes had put to the Court, bearing in mind, however, it is a repetition by her to her doctor of her instruction that she had vomited 20 minutes ago whilst at the Court and has been both vomiting and had diarrhoea over the last three days.
Shortly before lunch the matter was called in Ms Byrnes’ absence, although her mother was present. As Ms Byrnes’ mother is not a party to the proceedings, she was not invited to participate in any fashion.
I had indicated to counsel for the father at that point that I had read the material and identified that which I had read and the difficulties that I apprehended with respect to the matter. I indicated, both for the benefit of counsel and Ms Byrnes through relation of such comments by her mother to her, that the matter would resume at 2.15pm and would, in Ms Byrnes’ absence, proceed to judgment based upon the evidence that she had invited me to consider and which is enumerated above and which has been considered. Indeed, I made clear that my concern was that the material that Ms Byrnes has filed, even bearing in mind that she was self-represented, could not be taken as anything other than an admission against interests. Indeed, it is a confession with respect to the various allegations and for reasons that I will explore.
On that basis, whilst Ms Byrnes has been offered the opportunity to cross-examine Mr Farrow and has refused it, it is difficult to comprehend, in any event, what use could be made of cross-examination, bearing in mind there is no counter-assertion to agitate or put to Mr Farrow. Whilst clearly Ms Byrnes is not bound by the NSW Barristers Rules or Solicitors Advocacy Rules (NSW), rules 56 and 60 of the NSW Barristers Rules would preclude questions being put by Ms Byrnes which did not have a foundation in fact, are not relevant and would not support her case.
Her own case is that she has refused to comply with the order. The reasonable excuses that were offered by her from her own material are, at best, dubious, but I am satisfied disingenuous.
Ms Byrnes returned to the Court at 2.15pm and has participated in the hearing.
I have determined to proceed with the matter today, notwithstanding that Ms Byrnes has asserted illness, and notwithstanding the matters I have referred to above.
Ms Byrnes has a history of seeking adjournment from this Court by provision of medical certificates, similar to those which have been provided on each of 6 and 7 November 2013.
I have made clear to both parties that I have extracted from the Court file the various medical certificates that have been provided. Curiously, when the proceedings were to be before the Court on 5 June, on which date the matter needed to be adjourned as Ms Byrnes did not appear, adjournment had been sought by Ms Byrnes. She had communicated with the Court on 23 May 2013, some two weeks prior thereto, indicating:
I am requesting that the case be rescheduled for a later date.
It continues:
I am requesting that the case be adjourned until July 2013.
It also indicates:
I am requesting that the case be heard by another Judge.
The proceedings had been dealt with at all times prior thereto by Judge Brewster. The proceedings are dealt with by me today as a consequence of Judge Brewster’s illness.
There is a date stamp on Ms Byrnes’ letter suggesting it was received by the Court on 25 May 2013, and then a handwritten note suggesting that Ms Byrnes had been telephoned by a member of Court staff, who has initialled and dated the document 24 May 2013, and advised that she required the consent of the other parties to adjourn the proceedings.
The Court officer’s note then indicates:
She advised me that she had sent an email to them, requesting that they consent to the adjournment, but had not heard back. She also advised that they probably would not consent, so I advised her that if this was the case, then the matter would proceed on 5 June.
Lo and behold, following that and on 30 May 2013, communication is received by the Court, addressed to Judge Brewster and indicating:
As advised previously, I am not able to attend Court on 5 June as X has a doctor’s appointment.
The Court was not previously advised of that. It was suggested to the Court on this earlier occasion that Ms Byrnes needed further time to address the matter and sought an adjournment.
When the appointment for X was made is unclear, although a letter confirming the appointment is provided from the same medical centre as Ms Byrnes attends and from which she has produced medical certificates from and dated 29 May 2013. Whether that is the date the appointment was made or not is unclear.
It would appear likely that after being advised that an adjournment could not simply be granted without consent, that the appointment is made to manufacture difficulty. Thus the proceedings were adjourned from 5 to 7 June, a further event occasioned both the Court and the father further delay and cost incurred.
On 26 February 2013, the proceedings were before the Court. The matter could not proceed on that date as Ms Byrnes had forwarded to the Court a medical certificate from the same practitioner, quoting:
Ms Byrnes is, in my opinion, suffering from medical illness and will not be fit for duty from 26 February to 28 February 2013.
Medical certificates or suggested medical illness causing delay or adjournment of proceeding have been provided by Ms Byrnes on at least two other occasions since the making of the primary order on 12 September 2012.
I must have some concern as to the genuineness of those certificates or that which is related to the good doctor when he is asked to issue them. The events relating to 5 June 2013 are particularly concerning and cause me to form the view that I have that, in all probability, if the matter were adjourned, there would be potential for further medical certificates to be adduced and/or, in any event, further delay which would simply be somewhat pointless.
It is not possible for the proceedings to be adjourned without the matter being part-heard and thus, a visiting judicial officer returned to this Registry and a delay of many months. There is no prospect of that return occurring prior to March or April of 2014, by which time this child is due to be spending overnight alternate weekend time with the father, subject to the determination of the applications before the Court today.
I am satisfied that Ms Byrnes has engaged in a pattern of conduct which may genuinely arise from symptomology manifesting itself as a consequence of her anticipation of proceedings, but may not.
I am conscious that I must balance her suggested and expressed illness against her ability to participate in these proceedings and the subject matter of them and the delay which has already occurred.
The Application for Contravention has been on foot now for over six months. It has been delayed, pending the hearing of the mother’s appeal. The child and the orders, the subject of the contravention, have been the subject of two applications by Ms Byrnes for variation or stay. Those applications have each been determined and dismissed.
I am not satisfied that any genuine purpose would be served through further adjournment.
I am not satisfied that Ms Byrnes is sufficiently unwell as to be unable to participate in these proceedings.
I am not satisfied that Ms Byrnes is sufficiently discomforted or inconvenienced through illness or other circumstance such as would obviate, in accordance with the principles established by freeborn John Lilburne, an adjournment of the proceedings.
Accordingly, the matter has proceeded. The matter requires determination. In the words of a Canadian colleague Justice Quinn in Geremia v Harb (2008) 90 O.R (3d) 185 Sup. Ct. J (Gen. Div Fam.Ct) “The parties have gorged on court resources as if the legal system were their private banquet table. It must not happen again”.
History of proceedings
A cursory examination of the file would suggest that there have been nearly 18 appearances in these proceedings since August 2011. There has been a Family Report prepared, a variety of reports obtained from the Department and numerous Subpoena issued.
There have been at least five determinations of interim orders during the currency of the matter, including two since the primary order was made, together with the refused Stay Application.
It is again important to note the history of Orders in these proceedings.
At all times throughout the proceedings, Ms Byrnes has opposed any time occurring between the child and the father or has sought supervision.
Orders were made on 27 September 2011 which provided for periods of one hour each, supervised by the maternal grandmother, and to occur at or opposite to a (omitted) coffee house.
On 18 December 2011, further interim Orders were made which provided for three periods of one hour and after a period of three months, then increasing to one period of two hours and two periods of one hour. Those periods were unsupervised, but again, to occur with changeovers at the same (omitted) Cafe establishment.
On 22 June 2012, an Application for change of name by Ms Byrnes was heard and refused.
On 12 September 2012 the primary order was made.
On 22 October 2012, the Stay Application was refused.
Orders have otherwise been made on 14 May and 7 June, as already recited.
In all of the above circumstances, I am satisfied that I can safely proceed with the matter today.
The father’s allegations
Each of the 33 allegations has been put to Ms Byrnes. They have been put in the following terms, they being otherwise identical allegations:
It is alleged that at 8.30 am on (date) you did, without reasonable excuse, fail to make the child available to spend time with the applicant; do you admit or deny the allegation?
Each has, as is already indicated, been admitted. That is so, notwithstanding what I have already indicated, that I do not take the admission to include the portion of the allegation that any failure to comply was without reasonable excuse.
Ms Byrnes has been made aware of her right to challenge each and every allegation which Mr Farrow is required to prove, namely that:
a)an order exists;
b)she was aware of the order;
c)she understood the order;
d)she has not done that which the order required; and,
e)Mr Farrow has not, through the evidence that he has led, or through her cross-examination of him, established that there is no apparent reasonable basis for non-compliance or reasonable excuse.
I note that the Application in fact contains 34 allegations. I intend to proceed and deal with 31 of the 34 allegations.
The last allegation contained in the Application suggests a contravention on the very day of filing of the Application, being 14 May 2013. That allegation is denied in its totality by Ms Byrnes and fairly so. Indeed, the allegation is not pressed. The parties were clearly before this Court on that date.
Two further allegations, I am satisfied, should not be considered by me and would not prejudice Mr Farrow if they were not. The mother contends in her material – although she conceded the allegations in any event – that on one occasion she had attended at the changeover point, both at 8.30am and again at 11.30am and on a further date the parties were before the Court. There are issues of real contention as to when time periods should commence. I will deal with that at some length shortly.
The other 31 allegations are clearly made out.
Mr Farrow need only establish one contravention, let alone 31, before he is in a position to invoke the Court’s jurisdiction to address them.
The 31 allegations all relate to Order 4(b) as it then stood unamended and unvaried of the order 12 September 2012. That Order provides that for the relevant period – and there is no dispute that it is the order that was in operation at that time – that the child was to spend time with the father:
For two periods of six hours each week at a time to be agreed, but failing agreement, from 11.30am until 5.30pm on Mondays and Tuesdays.
The father’s material, as to which he is not being cross-examined and thus I accept it as totality, establishes, I am satisfied, a prima facie case to which the mother must respond. She has indicated that she has a reasonable excuse and has directed me to each of the four Affidavits filed by her with respect to it and to seek to ascertain it.
It is to be noted, lest there be any controversy with respect to it, that the father makes clear that on a number of the dates, a number of the 31 pressed – and I am satisfied, made out – that he did not, in fact, attend the changeover location. The father asserts, however, that this is on the basis that he had received clear prior communication from Ms Byrnes that she would not comply and the child would not be available.
The father asserts, at paragraph 11 of his Affidavit with respect to the first allegation being 8 January 2013, that he had received an email from Ms Byrnes at 7.19 that morning saying:
Hi Mr Farrow, I have been advised by Care and Protection as well as the police communications to not provide X for today’s visit. I am going to the courts today. Thanks, Ms Byrnes.
Mr Farrow refers to that email as being annexed to the mother’s Affidavit marked as annexure Q and being that filed on 15 January 2013. When one goes to that annexure it is quite clear that his evidence is accurate. He indicates that email chain commences on 7 January 2013, the preceding day, and with a subject heading:
Urgent !!!!! Please see attached photo taken as soon as I got home from picking X up from you. Please tell me where you have had X today. Please be aware that I have contacted Care and Protection and have reported this. X also has a doctor’s appointment later today and will need to have tests due to the skin is broken. With the bite, X would have been rather upset as it appears that another child has bit him.
That is responded to by the father who indicates:
I had X with me at home and the only place we went to was to drop Ms R off at work in the (omitted). At no time did X become distressed or upset or indicate to me that something had happened to his arm. I have no idea how this could have occurred as I always make sure I am looking out for X when he is in my care.
The mother subsequently responded to that with the email referred to at 7.19am on 8 January 2013.
Mother’s suggested reasonable excuses
The mother’s evidence with respect to that event; what I will refer to hereafter as “the biting incident” is set out in paragraph 62 of the Affidavit filed 15 January 2013. It indicates:
7 January 2013 X was returned to me with a large bite mark and scratch on his left arm. I sent an email to Mr Farrow asking how this occurred. Mr Farrow responded that he did not know how it occurred. I rung Care and Protection and reported the incident as per Magistrate Brewster’s words in court that if any incidents occurred to contact Care A Protection. I sent Mr Farrow a coloured picture of X’s bite mark and scratch. Mr Farrow still does not know how this occurred. I took X to the doctors and they confirmed the bite was approximately three to four centimetres and possibly done by a child. I asked Mr Farrow of where he had been with X, as it appeared to be done by a small child. Mr Farrow advised he had only taken X to drop Ms R off at work. He clearly also indicated that he had been to the mall, and he was home alone with X until they came to (omitted) Mall to drop X off. He also said X was not around any children or pets that could have bitten him. I had my mother contact police whilst I was at the doctor’s with X, and the police advised to not send X to the visit the next day and to go straight to the courts the next day to lodge papers to stop all visits for X’s safety.
I will return to that as regards the nature of a defence pursuant to section 70NAE of the Family Law Act and a reasonable excuse as defined therein.
The mother then annexes the emails to which I have referred. Curiously, the mother suggests that she then went to the Family Courts on 8 January at 8.45am and was advised to lodge a Stay of Orders as well as to go see Legal Aid at the Magistrates Court.
The mother says that she was sent to Legal Aid at the Magistrates Court who then sent her to see a person called Ms J at Pappas Lawyers. She then indicates:
Ms J gave me advice to seek a DVO against Mr Farrow which would cease contact visits. Ms J helped fill out the DVO forms. Whilst waiting to go into court for the DVO, Mr Farrow emailed me saying that he would lodge a contravention application if I did not provide X for Monday 14 January’s visit. Mr Farrow also said that Care and Protection and police could not tell me to cease visits. They did not have the rights. The DVO was adjourned until 15 January 2013. Contacted Care and Protection back to advise them of the outcome. Care and Protection then spoke to the police who advised them to contact Mr Farrow and question him and warn him.
The mother’s evidence continues on with various other matters all of which would be otherwise inadmissible relating to suggesting conversations with third parties.
The mother made an Application for a Stay following the making of the primary order. It came before the court on 22 October 2012 and was dismissed.
No Stay Application was made after the biting incident, although the Application initiating proceedings, which may be what the mother had contemplated, was filed. That Application, as I have indicated, ultimately resulted in:
a)the mother seeking no relief consistent with that which she sought and based upon the same evidence upon which she relies in relation to a reasonable excuse today; and
b)the mother, in fact, giving evidence that she was told on not less than two occasions by Judge Brewster to comply with the order.
The mother indicates at paragraph 10 of her Affidavit of 17 April that on 1 March 2013:
Magistrate Brewster adjourned the case until 16 April 2013 so subpoenas could be issued to Care and Protection as well as the Australian Federal Police. Magistrate Brewster advised that I must [emphasis added] comply with orders until we return to court.
It is also suggested in the mother’s material that on a subsequent occasion, 16 April 2013, as set out in paragraph 28 of the same Affidavit, that she was told by Judge Brewster to comply with the Orders. She indicates:
Magistrate Brewster ordered that the times for X to see Mr Farrow would be 11.30 am to 5.30 pm even though X slept. Magistrate Brewster did not care what the Care and Protection had written in their report.
That is a misstatement on a number of levels. Judge Brewster most assuredly cared what Care and Protection wrote in their Report. He, in fact, commissioned their Reports. He made Orders pursuant to section 69ZW of the Family Law Act to obtain that very information. He extended an invitation, as indicated in the reasons, 14 May 2013, for the Department to intervene if they had any concerns. In fact, his “failure to care” would appear to refer to that set out in paragraphs three and four of the Reasons already referred to, being that the Department had no concerns and, in fact, confirmed to the Court in writing that they had never told the mother that she should not comply with the Order.
The Department contradicted the mother’s evidence in its entirety.
It is instructive to turn to the notes from the Department. They suggest, presumably on the mother’s report, that from 7 January 2013 there has been no contact between the father and X and as follows:
The matter was listed in court on 1 March as the mother is requesting a change in the contact arrangements. She is requesting that they are supervised. The matter was adjourned until 16 April to allow CPS and AFP records to be subpoenaed. The mother has received a letter from CPS which she states has made false claims. She believes it does not support her request for supervised contact with the father. On 1 March the mother was also informed she must continue to adhere to the court contact agreement. As a result, the mother has been bringing X to the contact location every week and the father has not arrived for contact. The reporter is concerned about the emotional impact this has on X.
That deals also with the issue of when time commences and the mother’s actions, with respect thereto. With respect to the bite, there is a note from 7 January 2013 which suggests the reporter, presumably Ms Byrnes, drove from (omitted) Mall to (omitted) and took X out of the car seat. Reporter noted a bite mark on X’s left arm:
There is one bite mark (like a child bite mark) and a scratch through the middle of the bite mark. The bite mark was not pierced the skin and the mark is positioned near his elbow.
It goes on to address a number of other matters. It indicates in latter portions of the Report that the mother, clearly sometime after 7 January, has contacted the Department to express her dissatisfaction with them. She is quoted on page three of nine:
Ms Byrnes does not agree with this [being that the Department would not take any action nor support her application to this court - I hasten to add nor is that their role]. She states she is not able to protect her son as CPS has not supported her view that the contact between X and his father should be supervised.
What is clear from that paragraph is that the mother is clear and unshakeable in her view. Indeed, it is abundantly clear from every document she has ever filed in this Court that she believes that time should be supervised.
Ms Byrnes goes on to indicate in a latter interview on 5 April 2013 that time with the father was still not occurring and suggested that this was on the basis that the child was being presented as required by the order and that the father was not attending to collect the child.
The Department, in fact, raised the mother’s concerns with the father on that occasion regarding the potential emotional impact on the child who it had been suggested was repeatedly presented and the father not attending.
The mother asserts that she has, for most of the periods, but not all, presented the child, and it is the father who has failed to appear and is thus in breach of the order.
The Departmental records indicate that since 4 March, a date to which I will return shortly, “…the father has not had contact with X because he will not agree to “the conditions”. Mr Farrow states that contact is court ordered to take place from 11.30 am unless otherwise agreed by both parents”. I pause to note, that is an accurate statement of the Order. It continues:
…he advises that X used to sleep in the day from 1 to 5 and now he is told 2.30 to 5.30. Mr Farrow answered that he has spoken to other parents and groups and has been informed that it is a good thing the child becomes used to sleeping in another’s environment, and he questioned what would happen when contacts increases to eight hours and overnights.
The Departmental record goes on to raise a number of other complaints regarding the lack of provision of material. The record otherwise concludes “…he advised that he has been accused of being an alcoholic, involved in domestic violence and using drugs. He states that these accusations are not true and not proven”.
There is discussion about the child’s emotional well-being and about the child not being presented. The father indicates, with respect to same:
…Mr Farrow advised Ms Byrnes [Ms Byrnes], and she is fully aware that he will not be there at 8.30 as he is not agreeing to those times. He advised his solicitor is also aware of this. Mr Farrow advised the arrangement for contact before X’s birthday had been handover at 8.30. He advised that the matter is back before the court on 16 April and the court can decide what will happen. Mr Farrow advised that every step of this has been a battle and he feels Ms Byrnes just wants to “fight him.
I am satisfied that there is some real force and truth to that asserted in the last statement.
What is abundantly clear from the Departmental record is that:
a)the father has not agreed to changeovers at 8.30am; and,
b)the child is being presented notwithstanding the mother is fully aware of the father’s absence of agreement.
The difficulties that thus face the mother as regards and following the biting incident on 7 January 2013 are myriad.
Firstly, there is no evidence other than the mother’s assertion that after returning home from the mall where changeovers had occurred, outside a Red Rooster franchise that she observed a bite on the child’s arm. There is no evidence that it occurred or, if it did, how it came to be. The mother asserts it “clearly occurred” in the father’s care. It may not have. It may have. However, it may have occurred or been created after the child left the father’s care or before the child entered the father’s care. There is simply no evidence.
Secondly, that allegation has been before the Court and before Judge Brewster on not less than two occasions and, I am satisfied, three. When the Application first was before the Court the mother had raised the allegation, notwithstanding her complaints that Judge Brewster is biased against her. I pause to note, it is just an erroneous and scandalously offensive allegation not supported by any evidence filed by the mother, let alone any other circumstance.
Judge Brewster has, on each occasion that the matter has come before him namely:
a)26 February 2013 when the matter could not proceed as the mother was not present and had simply faxed a medical report, and recalling that that is the first return date of her Application;
b)1 March 2013;
c)22 March 2013;
d)11 April 2013;
e)16 April 2013, and
f)14 May 2013;
taken the allegation extremely seriously. He has commissioned Departmental Reports. He has deferred dealing with the matter until those Reports are available.
Once that material was available and on 14 May 2013, the mother’s application to suspend, discharge or vary the primary Order and require supervision was determined by His Honour as without merit.
There is no other conclusion that can be drawn from the reasons given by His Honour and the terms of the Order itself which simply defined and reinstated that which was to occur. Indeed, on the basis of the amended Order as issued that date, all his Honour did was to remove the reference to:
At a time to be agreed but failing agreement -
so as to make it a certain time and to avoid any suggestion that the parties were at liberty to agree to other times or other arrangements.
Thirdly, the mother’s response to her suggested concern as to the child’s safety has not been to withhold the child but to have presented the child mischievously, indeed I am satisfied, callously and despicably, on a repeated basis at 8.30am after the biting incident and before the Orders made 14 May 2013.
The mother did not wait for the Court to reject her allegations, to determine them by reference to all available evidence, including that of the Department, and dismiss them as not substantiating an unacceptable risk.
Her own evidence, particularly if one turns to her Affidavit of 23 May 2013, is that repeatedly from 4 March 2013 the child was presented at 8.30am for collection by the father. That is so, notwithstanding she had been made abundantly aware that the father did not agree to the change in the order and collection at 8.30am rather than 11.30am.
It is simply not open to the mother to argue that the order is unclear. It provides, “…failing agreement, time will commence at 11.30 am”. There has never been an agreement. The mother has insisted. The father has rejected her insistence.
The mother’s presentation of the child as and from 4 March 2013, notwithstanding her assertion that she was fearful for the child’s care and wellbeing as a consequence of the biting injury, simply cannot stand together.
If there was such a concern, one would doubt why the presentation would occur. I am satisfied it is simply part of the reality Television program Ms Byrnes believes she is part of. I do not say that to suggest she has a fixed delusional belief, but she acts as though this is a game, and in the most, as I have indicated, she has acted in a callous and despicable manner.
That is so because her own evidence, that related to the Department as to the child’s emotional wellbeing as a consequence of repeated presentations expecting the father, and the father not being present, is suggested to cause him distress and emotional harm, makes it so.
What I can take from that repeated presentation is that if it is suggested the child is emotionally harmed by the father not attending when the child is presented with the expectation of spending time with his father, there must be at least an implied concession that there is some warmth in the relationship between the child and the father to cause such disappointment. If the child was fearful of the father, one would think he might react differently.
The mother sets out at paragraphs 22, 23 and 25 of her Affidavit of 23 April that on three specific occasions, 1, 2 and 8 April, that she attended with the child at (omitted) Mall between 8.15am and 8.45am. Mr Farrow did not appear. The mother suggests that “X sat on a chair looking up the walkway and asked, “Where is he?”
That would suggest, as I have indicated, some warmth and expectation by the child of spending time with his father as the Orders required, although not commencing at 8.30am. To thus present the child is no more than Ms Byrnes acting, as I have indicated, in a callous way as regards her own child.
To the extent that the child has experienced emotional harm, indeed, been abused by such unfulfilled presentation, he has been abused by his mother.
The mother’s evidence with respect to changeovers does her no credit. It is counterintuitive to suggest that the order leaves any scope for disagreement. It is either agreed, or failing agreement, 11.30am. The mother asserts frankly, indeed I am satisfied, arrogantly and contumeliously that on specified dates from 5 March to 15 April 2013, that the child was presented at Red Rooster at 8.30am. She continues, “However, Mr Farrow did not show.”
That is hardly surprising, based on the mother’s own evidence. The mother asserts at one point in her material, paragraph 8 of that Affidavit, that 8.30am was the “normal time” for changeovers. However, what is clear from an examination and cross-referencing of her four different Affidavits is that there has never been an agreement, at least not since the child’s second birthday, for changeovers at 8.30am.
What the mother leads in her evidence, and particularly her Affidavit of 23 April as well as paragraph 77 of her Affidavit filed this morning, is that she has continuously required of the father that time would occur at 8.30am rather than any other time including 11.30am as ordered by the Court.
At paragraph 77 she indicates in relation to a changeover that occurred on 18 September 2012 and after a complaint that Mr Farrow had been aggressive towards her, as follows:
I advised him I had not received the new orders and when I did I would let him know. When I got home from the visits, the orders had come in the mail.
Accordingly, there is a further concession by the mother that she had the Orders and was aware of them, at least since 18 September 2012, even though she was present in Court when they were made. Having read them, clearly Ms Byrnes realised the Orders provided for changeovers, absent agreement between the parties to the contrary, to occur as and from 17 February 2013 at 11.30am and prior thereto at 1.30pm.
The mother goes on to indicate:
I contacted Mr Farrow via email advising him that I had received the new orders and tried to arrange a time for him to spend with X, as the times set out by the Court were when X slept. I proposed 8.30 to 12.30, as X slept from 1 till 5 seven days a week. Mr Farrow kept refusing, saying he would not start the visits until 10.30. I asked Mr Farrow what was so important that he could not spend time with his son on his days off.
I pause to indicate that in this case, I genuinely accept that Ms Byrnes’ statement that she believed that Mr Farrow needed to provide some justification as to why he could not spend time with his child on his days off was an appropriate thing for her to question. However, Mr Farrow has never indicated that he would not or could not spend time with the child. He indicated, in accordance with Ms Byrnes’ own evidence, that he couldn’t start before 10.30am and thus the proposal she was putting to him, never a concluded agreement, was not workable from his perspective, and he thus did not agree. It concludes – paragraph 77 of the Affidavit of 7 November 2013:
Mr Farrow continued to refuse the 8.30 am start time.
How it could be thus asserted that Mr Farrow has ever “agreed” to 8.30am is a mystery. Indeed, it beggars belief.
The Affidavit continues on to suggest that thereafter and commencing on 24 September, the mother then commenced to present this child at (omitted) Red Rooster between 8.15 and 8.45am each morning, notwithstanding that she had been advised clearly and unequivocally by the father that he would not and could not be there. That farce continued for some little time.
Eventually Mr Farrow relented, and he attended for the 8.30am pick up on 23 October. He collected the child at 8.25am. Curiously, the mother on that occasion did not object to him collecting the child five minutes earlier than the commencement time, although on 4 March, to which I will turn shortly, she had a real difficulty with him collecting the child somewhere between one and four minutes late.
It is suggested on that occasion, 23 October, that a discussion occurred. Ms Byrnes said, “I thought you couldn’t do 8.30 am changeovers.” Mr Farrow responded with, “I’m not going to discuss this with you.”
She suggests that she then received at 8.49am an email from Mr Farrow’s solicitors advising that he would conduct changeovers at 8.30am. It would seem that a number of such changeovers occurred. Further communication and correspondence occurred about a number of matters, including the preferred sunscreen for the child and the like.
Clearly by the end of the year it was again made very clear, by Mr Farrow to Ms Byrnes, that he no longer agreed with 8.30am changeovers. Whether that corresponded with the child’s birthday or some other time is unclear. It is not particular germane to establishing the contraventions for the period between 8 January and the child’s birthday for reasons that I will return to as regards the mother’s evidence.
The mother indicated following the biting incident that the child would simply not be made available. Thus whilst the father’s evidence concedes that on a number of the dates which he has alleged contravention he did not attend to collect the child, I am satisfied that a contravention is still made out. That is based on the mother’s admission or confession at paragraph 6 of her affidavit filed 23 May 2013. That commences:
In relation to paragraph 9 of the father’s affidavit dealing with this specific day, the following dates Mr Farrow would advise that contact would not occur.
There is then a listing of 21 of the 31 dates which are pressed as allegations of contravention. Accordingly, the mother had made clear to Mr Farrow that he need not waste his time attending. He has been advised of the futility of doing so in not one letter but several. I do not propose to recite them all, but they are annexed to one or other of the mother’s four Affidavits. Indeed, a number of them are contained on the court file, as she has sent them in anticipation to the Court so that the Court is also aware that she has no intention of complying.
Why she would consider that appropriate is difficult to comprehend, but considered appropriate it would appear to have been.
One of those letters is particularly remarkable, and I am satisfied most fully and abundantly demonstrates Ms Byrnes’ attitude towards Mr Farrow, the child’s relationship with Mr Farrow, this Court, and compliance with this Court’s Orders. It is a letter dated 16 April 2013 purporting to be signed by Ms Byrnes, received by the Court that day and headed, “To whom it may concern”. It reads:
X will not be provided for any visits until my new application [presumably that filed 15 January 2013] has been heard by a new judge.
The most curious paragraph is the second:
Magistrate Brewster will not be hearing this case.
When Ms Byrnes felt that it was appropriate for her to take upon herself the authority of a Chapter III Judge and to recuse His Honour is entirely unclear.
There would not appear to have ever been any formal written application for recusal. Whether an oral application has been made, I need not concern myself. Clearly it has not been successful if it were so.
By reference thereto, and having regard to the above evidence, I am not satisfied that the child is or would be exposed to an unacceptable risk in the father’s care. Further, I have some difficulty in accepting the mother’s allegations, for her case is long on allegation and short on evidence. That is so even noting that she is self-represented and allowances might therefore be made, although it is not the role of the Court to dispense justice based upon two sets of rules: one for those with lawyers, and one without. Surely, if we were to do that, we would need to start distinguishing between competent experienced lawyers, and those who might be less. Those comments are not directed at counsel in this matter. One set of rules exists. They apply, irrespective.
Section 69ZT of the Family Law Act provides that certain portions of the rules of evidence are not applied in parenting proceedings, unless the Court declares that they are satisfied circumstances are exceptional, and thus they should so apply. However, subsection (2) makes very clear that one should place such weight, if any, upon evidence which would not otherwise be admissible but for the suspension of those rules as would be appropriate.
I am satisfied that sections 135 and 136 of the Evidence Act dictate the test for same, i.e., the evidence deals with an issue of significance and seriousness, the consequence of its acceptance and findings made thereupon are significant and serious. There would be extreme prejudice to a party facing evidence which cannot be tested. Accordingly, evidence of what is suggested to be said by third parties or, in some cases – as in the mother’s case – fourth parties, I reject. To the extent that it must be admitted pursuant to section 69ZT(1), it is admitted. No weight will be attached to it.
In any event, I have real issues with respect to the mother’s credit. Her evidence with respect to 4 March 2013 is disingenuous at best and beggars belief as to how it could be offered as being the actions of a protective or reasonable parent. Indeed, her continued delivery of the child to a venue, her assertion that the child is emotionally harmed by it – which, as I have already indicated, gives me some confidence that the child clearly must have a relationship of some warmth and recognition with the father, notwithstanding how disrupted and fractured that relationship has been – would suggest to me that the mother is engaged in a pattern of abuse of this child. A pattern of abuse which, but for the absence of ongoing proceedings, would cause me to invite the Department to intervene, as the child might be better placed in the care of a person not engaged in such abusive behaviours, and able to act insightfully and to differentiate their own needs from those of the child.
In any event, I am not satisfied, for all of those reasons that an unacceptable risk is made out.
In then, dealing with the matter by way of legislative pathway, I refer to and incorporate the objects and principles in section 60B:
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(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
(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
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The objects require that I make orders which ensure the child’s best interests are met, by ensuring that parents each have a meaningful involvement in the life of the child, and have regular and ongoing time. Indeed, that is the child’s right. They are the bases upon which orders are made.
The Court must also be conscious to ensure that children are protected from physical and psychological harm. The only finding I have made with respect to psychological harm is the emotional or psychological harm to which this child has been exposed through the mother’s actions in presenting him early in the morning, in the cold and – not dark, but – early morn, at a franchise fast food restaurant in a mall, knowing full well the father would not be attending, and that would cause disappointment and – in her terms – emotional harm to the child.
I must then turn to section 60CA, and be reminded that when all is done, the child’s best interests are the paramount consideration.
I turn then to section 61DA and determine whether the presumption of equal shared parental responsibility applies. There is much in the evidence that would suggest that a full and appropriate exercise of equal shared parental responsibility, taking into account the obligations and duties created by section 65DAC in the event of the making of such an order, would be problematic. However, there is a final order in force which provides for it. I am not prepared, on this interim basis, with the evidence available and without any application for final relief, to vary that order. It will accordingly be left.
Thus, I am mandated to consider equal and substantial and significant time before considering any other time arrangement. No application is agitated for same, and thus, whilst I must still consider it, I am satisfied that unless I am persuaded that the Orders of 12 September 2012 as varied, (and now operating by reference to order 4C of those Orders), should be varied then time will remain as ordered.
In making that determination, I turn to section 60CC and incorporate therein through section 60CC(3)(m), the provisions of section 65DAA(5).
I commence with the primary considerations, being:
a)the benefit to the child of having a meaningful relationship with both parents, and
b)the need to protect the child from physical or psychological harm through being exposed to abuse, neglect or family violence.
As I already indicated, the only finding I have made with respect to abuse is in relation to the mother’s behaviour.
In relation to the benefit to the child of having a meaningful relationship with both parents, I am conscious that in light of the difficulties experienced by the father in enjoying and practising his relationship with the child that it may have suffered. However, the mother’s evidence suggests the child has some warmth and meaning in his relationship with the father, otherwise he would not be as asserted by her to be emotionally harmed by the father’s non-attendance, and thus periods of time not occurring.
In those circumstances, it is difficult to understand how any caring, loving or competent mother could possibly persist in the course of action that she has, which clearly denies the child that the absence of which she suggests causes him emotional harm. However, that is what she has done.
I am satisfied there is an ongoing benefit to the child of having a meaningful relationship with the father. The only caveat thereto is that I am concerned that practical difficulties will arise, if they have not already arisen, whereby this child will not be permitted to have a relationship with the father through the mother’s actions, interventions, absence of support, and particularly having regard to the matters discussed by their Honours Nygh and Fogarty JJ in Stevenson & Hughes.
If that day arrives, no doubt either child protection authorities will intervene, or the father will – by application – seeking the child to live with him, thus seeking to address the matter. There is no such application at present.
I am satisfied that the benefit to the child of continuing a meaningful relationship with the father, even with the slings and arrows of Ms Byrnes’ discontent pricking at the child on a regular and continuous basis, would obviate against supervision of time or any interference therewith, as determined to be appropriate by Judge Brewster.
In turning to additional considerations:
Views
I have no real evidence of the child’s views. It is not suggested in the mother’s material that the child is at any time rejecting of a relationship or expressed an opposition to it. Indeed, her only evidence is that the child has been disappointed when he has not had the father collect him, even though the mother knew he would not be there to do so. Accordingly, that would support the father’s relationship continuing without fetter or interference.
Nature of the child’s relationship with each of the child’s parents, and other persons
The child, I accept, has a good relationship with each parent, although I have some concerns that if the behaviours that have been abundantly clear from the evidence and the determination made by me today continue, that the child’s relationship with the mother will be injurious to him. The child is already being investigated by a variety of medical practitioners to try and determine what is impeding his appropriate development. Perhaps Ms Byrnes might look to her behaviours.
The extent to which each of the parents has taken or failed to take the opportunity to participate in decision-making, spend time or communicate with the child
The father cannot be criticised for that. Ms Byrnes criticises him on the basis that he has failed to do what she has demanded and attend, when she says, for the periods she says she will permit, notwithstanding that she is determined to place herself in a superior position to Judge Brewster. I do not recall Ms Byrnes having been appointed as a judge of the Appeal Division of the Family Court of Australia but she has taken that role upon herself. She should stop, henceforth.
Ms Byrnes would be better served by being very clear in her own mind that it is not her choice or decision. If there are orders made by this Court, they should be complied with, penalties will attach, and to that I will return shortly after further submissions.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
The mother complains that the father is somewhat in arrears, indeed significantly so, with child support payments. She also complains that he refuses to participate in meeting costs, even though he has equal shared parental responsibility. That is perhaps a misapprehension of the nature and meaning of equal shared parental responsibility under the Family Law Act, and having no connection or nexus whatsoever with the Child Support (Assessment) Act 1989 (Cth).
In any event, to the extent that there are arrears, that would not by and of itself, obviate against the father’s time with the child, nor an interference in the present arrangement, and there is ample Full Court authority for that proposition. However, if there are arrears, they should be brought up to date. There is no direct connection to them, but the child benefits from being financially supported. It is also a clear expression of love and commitment.
Likely effect of change
I am satisfied that there is a positive effect for this child of resuming his relationship with the father. I propose, in due course and subject to further submissions to include as part of the penalty – although the entirety of the penalty cannot be formulated without further submissions – to impose upon the mother a further obligation to comply strictly with the orders made by this Court and to be of good behaviour. In the event that there is any failure in that regard, then the matter will return before me for further penalty.
I am satisfied that there is benefit to the child of the relationship, and an unsupervised relationship at that.
I am not satisfied that there is a detriment to the child at being separated from the mother for the periods of time that presently operate, being for two periods of seven hours each.
Practical difficulty and expense
I will deal with this as part of section 65DAA(5).
Capacity of each of the parents and other persons to provide for the child’s needs, including emotional and intellectual needs
The mother’s complaints I have rejected, indeed, Judge Brewster would appear to have rejected them as well, at least to the extent that they predated His Honour’s last involvement in the matter. I am concerned, and have found, that the mother is engaged in a course of action less than insightful or responsive to the child’s emotional needs, and indeed, abusive of them.
Maturity, sex, lifestyle and background of the child
This is a child not yet three, who has spent all of his life – save for the first four months thereof – engaged in parental conflict, indeed, parental warfare.
That this child is emotionally harmed, having investigations with respect to his development and of the like is far from surprising.
If the conflict does not remit – indeed, if it does not cease – no doubt, there will be further application to this Court. I have no doubt whatsoever there will be further application by Ms Byrnes. She seems firmly set on her desire to ensure that any time that occurs is supervised. It is open to her to appeal from these Orders. That is her right and her choice. It is open to her to bring further applications in the future. However, they will be dealt with based upon their facts and circumstances.
I make the observation purely that this child has been exposed to a pattern of abuse by the mother, in being presented, knowing full well that the child would not be collected, including at times of the year when the child ideally would not be dragged from his home at 8 in the morning to wait outside a Red Rooster restaurant for no apparent purpose. The child requires and deserves better. He is tiny. He needs to be protected from conflict.
The Department has made that clear to both of the parents, it would seem, particularly in the case of Ms Byrnes, but in all probability, also Mr Farrow, but that is not listened to. As I have already indicated, further applications which will seek to fundamentally interfere with the child’s arrangements will no doubt follow, if there is not change.
Aboriginality
There is no suggestion on the evidence – at least, not which is apparent from the material – that the child or either parent is from an Aboriginal or Torres Strait Islander background.
The attitude to the child and responsibilities of parenthood demonstrated by each parent
I am satisfied that is more than abundantly addressed above, and obviates against the relief sought by Ms Byrnes.
Family violence
The mother makes broad allegations of family violence, but there is no detail. This Court does not make decisions based upon innuendo and allegation, it makes decisions based on evidence, its proper testing, evaluation, and it being found to be probative.
Further, and perhaps more importantly, this Court does not entertain correspondence from litigants being Ms Byrnes’ preferred means of relaying information to the Court. To the extent that it has occurred in the past, it should cease. If it does not, I propose to direct that Registry staff simply reject the correspondence, and that it not be brought to the attention of any judicial officer or their chambers. It is entirely inappropriate, and inconsistent with all Federal Circuit Court protocols, and everything which is understood in any civil court as to how the Court is communicated with.
Family violence orders
There are none. There are undertakings given by Mr Farrow in response to the domestic violence complaint which Ms Byrnes had made early in 2013. I am concerned that Ms Byrnes does not suggest any concern whatsoever for her health, safety or apprehension of violence. She makes clear in her evidence that the application was made with the purpose and intent of terminating and interfering with time to occur in accordance with orders of this Court. That is an abuse of process, in itself.
Whether it is preferable to make the order that will least likely lead to the institution of future proceedings
I have no confidence that any order I make, or that any other person within this Court may make, will conclude proceedings.
Ms Byrnes has her mind fixed on an outcome and has adopted a course of behaviour aimed at achieving it. She has not demonstrated any emotional maturity that would suggest she is capable of understanding the impact her actions are having on the child, nor how she should engage as a member of civil society. She acts like a petulant child.
The child is described in the medical intervention reports that have been referred to by the Department as responding with tantrums when he doesn’t get his own way. That is very much the model Ms Byrnes presents for him.
Other facts and circumstances
I incorporate herein section 65DAA(5) of the Family Law Act.
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parties live in very close proximity.
The parents’ current and future capacity to implement an arrangement for the time to be spent by the child with the father is difficult to ascertain. However, when Ms Byrnes has chosen to comply, it has occurred. Thus, I am not satisfied it would prohibit an order.
The parents’ current and future capacity to communicate and resolve difficulties is highly problematic. I do not believe that there is any order I can make referring these parties to a community intervention, other than as part of penalty imposed with respect to the contravention proceedings, that would have any benefit.
Impact on the child. I am satisfied that there would be a negative impact upon the child of imposing supervision. There is no basis for it, there is no unacceptable risk established and all it would do is create yet a further fracturing in his time and relationship with the father.
Curiously and ironically, the conundrum that arises from the mother’s evidence is that, while she asserts that she is fearful for the child, she makes clear at paragraph 7 of her Affidavit of 23 May 2013 that she has, over a period of nearly two months, presented the child at a time that she knows the father will not attend and collect the child, and thus suggests and signals that she has no such concern. It is on that basis that I have real issues with her credit, emotional maturity and capacity to differentiate her needs from the child’s, or indeed, recognise how to behave as an adult.
Having regard to all of those matters, I am not satisfied that any interference should occur with the orders already in force.
I am satisfied, as already declared, that the order which operates now is order 4(c) of the Orders of 12 September 2012. It does not have any definition as to commencement or conclusion, or the days of the week upon which time it would occur. I propose to remedy that by directing and ordering that the time will continue to occur as it has, or as it has been expected to occur, but has been entirely frustrated by Ms Byrnes, each Monday and Tuesday, to commence at 8.30am, and for a period of seven hours, and thus, concluding at 3.30pm on each of those days. As and from the child’s third birthday, 17 February 2014, time will progress in accordance with order 4(d) to overnight time each alternate weekend.
The submissions put to me by the parties establish that the Orders to be made in response to the findings of contravention are Orders that can be made by consent.
I certify that the preceding two hundred and eighty-eight (288) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 24 January 2014
Key Legal Topics
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Family Law
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