FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LACKEY & MAE | [2013] FMCAfam 284 |
| FAMILY LAW – Long-term acrimony between parents – adverse influence of Father’s family – denigration of the Court, the ICL, the Mother, the litigious process and the Department of Community Services in “Facebook postings” (a form of cyber-bullying) – considerations regarding breach of s.121 Family Law Act and publication of Court proceedings – responsibilities of Court to self-represented litigant – best interest considerations for young children – Application to re-open in the light of further abuse by Father and paternal family and further risk assessment of the children (and the Mother) by the Department of Community Services – principles concerning application to ‘re-open’ – consideration of contravention penalty in the context of parenting orders generally – restraint on publication – issues relating to ‘scandalising the Court’ – request to Marshal of the Court to investigate possible breach of s.121 and if appropriate make arrangements with police and Director of Public Prosecutions for prosecution. |
| Family Law Act 1975, ss.60B(1) & (2), 60CC(1), 60CC(2), 60CC(3)(a)-(m), 61DA, 65DAA, 121(1) – (3), 121(5), (8) (9)(g) & (11), 69ZW |
| Abduramanoski v Abduramanoski (2005) 191 FLR 360; (2005) 33 Fam LR 1; (2005) FLC ¶93-215 J.D. Heydon, Cross on Evidence (Ninth Australian Edition) (Sydney: Lexis Nexis Butterworths, 2013) |
| Applicant: | MS LACKEY |
| Respondent: | MR MAE |
| File Number: | CAC 987 of 2009 |
| Judgment of: | Neville FM |
| Hearing dates: | 21 September 2012; 21 March 2013 |
| Date of Last Submissions: | 29 October 2012; 26 March 2013 |
| Delivered at: | Canberra |
| Orders pronounced… |
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- AGLC
- Lackey and Mae [2013] FMCAfam 284
- Case
- [2013] FMCAfam 284
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the mother should be granted sole parental responsibility for the children, and if so, what arrangements should be made for the children to spend time with their father. The court also needed to address allegations of abuse and the conduct of both parents on social media.
The court found that the mother should be granted sole parental responsibility for the children. It determined that the children should live with the mother and established specific arrangements for the father to spend time with the children under supervision and with restrictions on communication. The court further imposed restraints on both parents to prevent negative comments and derogatory behaviour in the presence of the children, and it restricted the father from making contact with the children except as ordered. The court also ordered the father to remove certain references from social media and restrained him and his family from making reports to authorities or publishing material about the proceedings.
The court rejected the father's pleas of admitted contravention with reasonable excuse, and it formally noted that any further contravention could result in a penalty. It ordered that the reasons for the judgment be made available to certain authorities and requested the Marshal of the Court to monitor social media for any breaches of the orders.
Orders
Orders of the court
1. All previous orders be discharged.
2. The Mother have sole parental responsibility for the children, [W], born [in] 1999, [X], born [in] 2002, [Y], born [in] 2007 and [Z], born [in] 2008 (“the children”).
3. The children live with the Mother.
4. The child [W] spend time with her Father in accordance with her wishes.
5. The children [X], [Y] and [Z] spend time with their Father supervised by an accredited professional supervision agency at such times as may be available through the supervision agency and such time to occur on not more than one occasion per fortnight.
6. The Father have sole responsibility for arranging time with the children under Order 5 and is responsible for any costs involved in arranging such supervision as required by Order 5.
7. The children communicate with their Father by telephone each Sunday between 6:00pm and 7:00 pm with the Father to initiate the call AND for the purpose of this order conversations with the children are to occur on a speaker phone with the Mother or her partner to monitor the conversation.
8. Each parent will refrain from making any negative or derogatory comments to or in the presence of the children concerning the other parent, and to use their best endeavours to ensure that no other person (including members of their respective families) denigrates or comments adversely on the other parent.
9. The Father be restrained from making contact with the children except in accordance with these Orders and is further restrained from allowing any other member of his family or any agent of the Father from making contact with the children unless agreed in writing by the Mother.
10. For the next three years, the Father, and all members of his family, are restrained from making any reports to the Department of Community Services and to the police in relation to any allegation of abuse involving the children.
11. The Father, the paternal Grandmother Ms M and the paternal great aunt, Ms C are restrained from publishing or otherwise distributing any material, by electronic means or otherwise, relating to these proceedings, the children, the Mother or any member of the Mother’s immediate family including but not limited to publication on Facebook or other social media site.
12. The Father immediately remove from “Facebook” all references to these proceedings, including but not limited to all references to the children, the Mother’s name, the Father’s name, the names and any details of any of the solicitors (and the firms for which they work) and the barristers who represent, or who have represented, the Mother and/or the Father in parenting proceedings pursuant to the Family Law Act 1975 (“the Act”), the name and any details of the Independent Children’s Lawyer and the firm for which he works, and all references to judicial officers of this Court [or the Family Court of Australia] in respect of decisions or determinations they are said to have made or not made, all references to any review by the Department of Community Services or the police concerning any matter or person involved in the current proceedings.
IT IS FURTHER ORDERED THAT
13. In relation to the contravention application, filed 20 July 2012, the Father’s pleas of ‘contravention admitted but with reasonable excuse’ are rejected. The Court formally notes that, in the event that there is any further contravention established against the Father, he is at risk of incurring a penalty of a bond, or other more severe penalty.
14. Pursuant to s.121(9)(g) of the Act, the reasons for judgment delivered today be approved for publication to the (a) the Marshal of this Court and (b) if necessary, Commissioner of the Australian Federal Police and all such police officers and persons as the Commissioner might reasonably permit or authorise.
15. Pursuant to s.121(9)(g) of the Act, all affidavits filed and exhibits admitted in these proceedings be made available to (a) the Marshal of this Court, and (b) if necessary, to the Australian Federal Police.
16. The Court requests that, for the next 2 years from the date of these orders, the Marshal of the Court periodically monitor social media (Facebook in particular) for any “postings” by the Father or members of the paternal family, that might refer to any person (including the children) or any matter that has been the subject of the current proceedings.
IT IS DIRECTED THAT
A. The Marshal of this Court take all such steps as might be required so as to ensure that any breach of section 121 of the Act revealed by the material specified in paragraph 12 of these Orders is investigated fully and, if appropriate, thereafter prosecuted.
B. The Marshal of this Court is also respectfully requested, for the next two years, to monitor (or to authorise the Australian Federal Police to do so) Facebook and any other electronic communication regarding any relevant reference to the current proceeding, and if such is found, to investigate it and refer it to the Australian Federal Police for possible prosecution.
THE COURT REQUESTS THAT
(i) The independent Children’s Lawyer make a copy of these reasons available to Dr S and to Ms O.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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