LONGFORD & BYRNE
[2015] FCCA 2504
•28 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LONGFORD & BYRNE | [2015] FCCA 2504 |
| Catchwords: FAMILY LAW – Practice and procedure – oral application for certain restraints to be imposed upon the father regarding postings on social media – where the father inappropriately posts information about the children and the mother on Facebook – prima facie breach of section 121 of the Family Law Act 1975 – where the father is restrained and injuncted from posting information about or photographs of the children or the mother on the internet. |
| Legislation: Family Law Act 1975, s.121 |
| Jones & Dunkel (1959) 101 CLR 298 |
| Applicant: | MS LONGFORD |
| Respondent: | MR BYRNE |
| File Number: | PAC 1176 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 28 August 2015 |
| Date of Last Submission: | 28 August 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 28 August 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Heng of Taylor & Preston Lawyers |
| Solicitors for the Respondent: | Ms Naughton of Saba El-Hanania Lawyers |
| Solicitors for the Independent Children’s Lawyer: | Ms Coady of Louise Coady Family Lawyer |
ORDERS
Leave is granted to the Independent Children’s Lawyer to make an oral Application for an Order restraining the father from publishing information upon the internet.
Pursuant to section 68B of the Family Law Act 1975 the father shall be and is hereby restrained and injuncted from causing to be posted to the internet or published by any other means whatsoever:
(a)Any photograph of the mother or the children;
(b)Any reference to the mother or the children;
(c)Any comment upon the mother, the children, these proceedings or any issue or allegation raised therein.
The father shall ensure that any social media post, Facebook page or other material presently posted or posted by him at any time in the past is immediately removed and further:
(a)The father shall do all things, give all instructions and authorities and take all steps in his power to ensure that the administrators of any such site cause those postings to be permanently removed and inaccessible by any person;
(b)Shall cause any posting made to any Facebook page or any other social media page maintained by him (whether in his name or in any other name) which refers to the above matters to be immediately removed from that page.
IT IS NOTED that the proceedings are otherwise listed for further mention and directions 8 April 2016 following anticipated release of the Family Report.
The Independent Children’s Lawyer is at liberty to provide a copy of these reasons and Orders to such person or authority as they consider necessary or appropriate and undertaking same shall not be considered a breach of the Harman principle.
Publish my reasons.
IT IS NOTED that publication of this judgment under the pseudonym Longford & Byrne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1176 of 2015
| MS LONGFORD |
Applicant
And
| MR BYRNE |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to future care arrangements for two young children, X born (omitted) 2009 and Y born (omitted) 2012.
The parties to the proceedings are the children’s parents being their mother, Ms Longford, who is the Applicant and their father, Mr Byrne, who is the Respondent.
Each of the parties is legally represented. The mother appears before the Court today with her legal representative. The father’s legal representative appears. The father is not present the Court being advised that he has work commitments which preclude his attendance with respect to these proceedings which relate to the welfare of his children.
The children’s interests are independently represented.
The Independent Children’s Lawyer has appropriately caused the matter to be re-listed before the Court today. The matter has been re-listed on short notice.
Leave is sought to make an oral Application for certain restraints to be imposed upon the father regarding postings on social media. The Orders are not opposed by the father’s attorneys nor could they rationally be opposed.
Exhibit A tendered to the Court today comprises a screenshot of the posting made by the father under the hashtag heading, “#21fathers #notyourright #ABF”, and with the further heading “Equal Rights for All Families”.
The page is clearly identified as being that of the father, although he refers to himself by the surname (omitted), rather than Byrne. It is conceded by the father’s attorneys, on instructions, that it is the father’s page.
The posting contains a large photograph of the mother with the two children, presumably at a slightly earlier age than their present age. In capitals is written across the photo:
My name is Ms Longford. I’am (sic) a child thief.
The page then has a further photo of the mother with the two children looking happy and smiling over which is written in capitals:
Had an argument with there (sic) dad. Now I’ll steal them.
The page then has the following post:
This is Ms Longford and my two girls they live behind (omitted) Ms Longford and I had a fight and now she is going for full custody!! I haven’t seen my babys (sic) since Xmas last year if anyone sees them tell them there (sic) daddy loves them and misses them very much every child deserves there (sic) father.
I have identified above the misspellings of the father as he appears unable to understand the difference between the possessive adjective and descriptive noun and consistently and inappropriately uses “there” instead of “their”. The father has similar difficulty with contractions. The father’s time might perhaps be better invested in improving his spelling and grammar than in the postings to Facebook that he makes.
The proceedings have been on foot since an Application filed by the Mother as a self-represented litigant on 17 March 2015. By that Application the mother does, indeed, in the same language that the father uses, reflective of American terminology, seek “full custody”. The mother seeks that she have sole parental responsibility for the children and that they live with her. The mother does not propose that the father spend time with the children.
The father, by his Response, seeks relief on a final basis such that the parties would have “joint parental responsibility”, whatever the father may understand that to mean, that the children live with their mother and spend time with their father each alternative weekend, each Wednesday evening, periods during school holidays and for special events.
The issues that are involved in the proceedings are somewhat complex.
There are substantial allegations of family violence raised in the proceedings. The mother by her Notice of Risk filed 17 March 2015 identifies that she and the maternal grandfather were physically assaulted by the father, both assaults alleged to have occurred on Christmas Day 2014. Irrespective of which version of events is preferred that Christmas was, no doubt, a joyous experience for these children.
At the time that the mother’s Application was filed the father was described as “facing assault charges”. The father has subsequently been convicted. A final Apprehended Domestic Violence Order has been made and whilst the proceedings have been before the Court a further charge has been brought against the father for breach of that Apprehended Domestic Violence Order. The Court is advised that the father has received good behaviour bonds with respect to both charges.
Previously in the proceedings a Person History document from the Department of Family and Community Services New South Wales was tendered. It remains an Exhibit for today’s purposes.
The Person History document suggests that there is a lengthy history of reports to that agency regarding these children and commencing in relation to each of the children in June 2013. The document evidences reports through to 12 January 2015. Whether reports have been made subsequent to the production of the Person History document in May 2015 is unknown. The reports that are made all relate to the children’s exposure to family violence and, it would seem, by their father.
There are also issues raised in the proceedings with respect to alleged drug use by the father.
On 30 July, 2015 the father was ordered to undergo supervised urinalysis, the first such test to occur within 72 hours of the Order, i.e. no later than 2 August 2015. An Order was made for the father to provide a copy of the testing report to each of the Independent Children’s Lawyer and the mother’s attorneys.
The Court is advised by the solicitors for the mother and by the Independent Children’s Lawyer that no such testing report has been received by them. The father has not provided instructions to his attorneys as to whether he has, in fact, attended to his obligation under that Order. That will have some significance in the proceedings as it was also noted on the prior occasion that in the event the testing does not occur as ordered, that a Jones & Dunkel (1959) 101 CLR 298 inference will, in all probability, be drawn, adverse to the father.
Also on 30 July, 2015 the father’s Application for interim relief had been heard and determined. The hearing certainly proceeded on the papers rather than with the testing of evidence and the parties giving oral evidence and being cross-examined. However, the parties each had an opportunity to place their material before the Court, to make submissions through their attorneys and a number of documents were tendered, including but not limited to the Person History document.
The father’s Application for interim Orders was dismissed. Thus, the father is left without the benefit of any Order which provides for his time or communication with the children. That is, in part – although the reasons for those Orders need not be revisited – on the basis of that which is alleged in the various Apprehended Domestic Violence complaints made on the mother’s behalf by Police officers and seeking to impose prohibitions on the father. This has included an Apprehended Domestic Violence complaint in 2013, when the first notifications to the Department as to the children’s exposure to family violence arose, and several since, together with charges and convictions for breach.
At the time of the first Apprehended Domestic Violence complaints the father was suggested to have forwarded text messages to the mother which are described in the complaint as having been viewed by the Police. Those messages were one of the bases of fears held by Police for the mother. The texts provided:
Yeop I’m the weak cunt aye Ms Longford and ur (sic) a fuckin mutt that if I stay near u (sic) I’m gonna hurt you Ms Longford cause ur (sic) like a shit that won’t flush dumbest cunt in Australia so fuck you try go for full custody and ur (sic) dead Ms Longford I’ll fuckin kill you bitch better yet show the cops the MSG it’ll help with like a AVO or something u (sic) know ur (sic) a slut Ms Longford do it ha ha ha.
Having invited that action the mother did as requested. The subsequent Apprehended Domestic Violence complaint was established and an Order was imposed upon the father namely, precluding the father from coming into contact with the mother, being within 200 metres of her residence, or attending at or approaching the school or preschool attended by either of the children.
A further Apprehended Domestic Violence complaint was made by a Police officer on behalf of the mother in early 2015. In that complaint, the children are also named as protected persons. Interim Orders were made by a Magistrate which precluded the father from being within 100 metres of the protected persons, including the children, or contacting or approaching them by any means whatsoever, save for the purpose of attending counselling, conciliation, or mediation. A final Apprehended Domestic Violence Order has now been made in the same terms.
Thus, the father’s Application for interim time and communication was dismissed on the basis that the Orders were entirely inconsistent with an existing Apprehended Domestic Violence Order made for the protection of the mother and the children. I was not satisfied that the evidence established that it was in the children’s best interests that an Order be made under the Family Law Act 1975 inconsistent with the Order which had been put in place by the learned Local Court Magistrate for the children’s protection.
In those circumstances, the present arrangements are arrived at whereby the children live with their mother and do not spend time or communicate with their father. The allegations that are made by the mother are serious and significant.
An attempt was made by the parties to facilitate time between the father and the children through a supervised contact service, the Central West contact service. Following assessment and intake, and as evidenced by correspondence tendered by the Independent Children’s Lawyer, who has diligently fulfilled their duties above and beyond that which might otherwise be expected from them, the Centre has refused to provide service to these parties. They have gone so far as to provide to the Independent Children’s Lawyer the correspondence that is tendered, comprising part of Exhibit ICL1 for the purpose of the hearing 30 July 2015. That correspondence outlines the bases of that rejection of the referral and the actions which the centre had taken.
The material produced by the Central West contact service demonstrates a significant history of family violence reported by the mother and in part conceded by the father, including significant injuries occasioned to the mother at times.
It is submitted on the father’s behalf that he has acted “out of frustration out of a desire to have contact with his children”. How that desire to “have contact” with the children by the posts that the father has caused to be placed in the public domain on a public Facebook page viewable by anybody who should choose to look upon them is completely inexplicable. There is no request made to the mother within the posting. There is not anything to do with the children save an invitation, presumably to the world at large, that should anyone, irrespective of their motive or intent, come upon the mother and the children to approach them, the father having helpfully indicated where the mother and the children live, and to tell the children that their father misses them very much, and that they “deserve” their father.
The actions of the father, prima facie, are a breach of section 121 of the Family Law Act 1975. Section 121 provides that:
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television, or by any other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
The father does not specifically refer to the proceedings presently on foot. That is the only basis upon which I am persuaded that I should not make a referral of Exhibit A to the Marshal for the purpose of consideration being given to the father’s prosecution. It is a matter for the parties and the Independent Children’s Lawyer as to whether they wish to pursue that course through either the Marshal or the Australian Federal Police. Clearly, the father has published details to the world at large – any person who cares to access the internet and in particular Facebook – of the details of Ms Longford, the children, and showing photographs of them and indicating where they live.
On the basis that there are allegations of significant family violence already made and noting that the father has already been convicted of offences of family violence, the postings would appear to demonstrate, if nothing else, a continuation of coercive and controlling family violence by him. He has potentially exposed the mother and “his” children to mischief and violence, not necessarily from himself, but others at his instigation or passive direction. How the father could believe, accepting the instructions that are given by him to his attorneys that this is an action taken precipitously and out of frustration with a desire to make contact with his children, that such purpose would be achieved through that which he has posted beggars belief.
The father’s postings would seem to suggest a complete lack of emotional maturity on his part and a complete inability to reflect upon or contemplate the consequence of his actions. He has readily identified the mother and his children. He has published a photograph of them. He has told the world at large where they live. That could lead anyone who cared to act upon the father’s mission, to fulfil the mission he has set or with more injurious and punitive intent, directly to the mother’s door.
The father’s actions are beyond irresponsible. They are reprehensible, if not criminal. I have no hesitation, irrespective of the consent which is given in any event, in making the Order that is sought by the Independent Children’s Lawyer, requiring that the page be immediately removed and not reposted.
The internet brings great benefit to society. It also, regrettably, brings great potential for disadvantage. It allows people with puerile complaint a forum by which they can attract attention to themselves, and in this case, regrettably, the mother and these children also.
The father does not seek to publish a photograph of himself with his address so that people might search him out. He simply puts the mother and these children in harm’s way. The behaviour is, bluntly, foolish.
In those circumstances, I make Orders as follows (see Orders).
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 15 September 2015