Pitman & Hynes
[2024] FedCFamC2F 22
•19 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pitman & Hynes [2024] FedCFamC2F 22
File number: WOC 772 of 2011 Judgment of: JUDGE LIOUMIS Date of judgment: 19 January 2024 Catchwords: FAMILY LAW – CONTEMPT – Where the Applicant alleges 13 grounds of contempt by the Respondent – Where no prima facie case is found in relation to any of the grounds – Where the parties are invited to provide written submissions as to the Respondent’s application that the Applicant be prohibited from instituting further proceedings without leave pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) – Where both children are adults at the date of hearing Legislation: Judiciary Act 1903 (Cth)
Family Law Act 1975 (Cth) ss 69ZK, 102NA, 102QB, 112AP
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.71
Cases cited: Carlson & Carlson [2020] FamCA 108
Pitman & Hynes [2021] FamCA 300
Pitman & Hynes (No 2) [2018] FamCA 1015
Pitman & Hynes (No 2) [2022] FedCFamC1F 373
Division: Division 2 Family Law Number of paragraphs: 138 Date of hearing: 5–6 October 2023 Place: Wollongong For the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr Hill of Counsel Solicitor for the Respondent: Fletch Law ORDERS
WOC 772 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PITMAN
Applicant
AND: MR HYNES
Respondent
ORDER MADE BY:
JUDGE LIOUMIS
DATE OF ORDER:
19 JANUARY 2024
THE COURT ORDERS THAT:
1.The Application – Contempt filed 29 April 2022 is dismissed.
2.Within 28 days of the date of these Orders, each party shall file and serve written submissions of no more than 5 pages in relation to the Respondent Father’s application that the Applicant Mother be prohibited from instituting further proceedings without leave pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”).
3.Judgment in relation to the Respondent Father’s application pursuant to section 102QB(2)(b) of the Act will be reserved thereafter to a date and time to be advised by Chambers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 29 April 2022, the Applicant mother Ms Pitman (“the Applicant”) filed an Application that the Respondent father Mr Hynes (“the Respondent”) be found guilty of contempt on 13 counts.
At the date of hearing, the children of the marriage are 19 and 18 years of age.
For reasons that will become apparent, I dismiss the Applicant’s Contempt Application.
EVIDENCE
The Applicant relied on the following documents:
(a)Contempt Application filed 29 April 2022;
(b)Affidavit of Ms Pitman filed 29 April 2022;
(c)Orders made by His Honour Judge Lapthorn on 30 October 2014, 13 February 2015 and 18 June 2015; and
(d)Affidavit of Ms Pitman filed 5 May 2023.
Extensive objections were taken to the affidavit material of the Applicant.
The Applicant was not required for cross examination and each party made submissions and relied on tendered documents.
I have had due regard to the documents tendered during the hearing.
BACKGROUND
These proceedings are between the Applicant Ms Pitman born in 1967 who was 56 years of age at the date of hearing, and the Respondent Mr Hynes born in 1968 who was 55 years of age at the date of hearing.
The parties began their relationship in 1995, were married in 1999 and divorced in 2013.
These proceedings were first commenced in 2011 and relate to the two children of the relationship, X born in 2003 and Y born in 2004. Since the commencement of the proceedings, both of the children have reached the age of 18. Despite this, they will be referred to collectively as “the children” in this judgment.
The parties reconciled after the initial proceedings began and subsequently discontinued them. However, the parties then separated on a final basis and in July 2014, the Applicant commenced proceedings in the Federal Circuit Court of Australia (as it was then named) seeking sole parental responsibility of the children.
Since this time, a long and convoluted history has transpired. The history of the proceedings is set out in the judgment of the Honourable Justice Baumann in Pitman & Hynes(No 2) [2018] FamCA 1015 at paragraphs 2 – 6, and in the judgment of the Honourable Justice Harper in Pitman & Hynes (No 2) [2022] FedCFamC1F 373 at paragraphs 2 – 18.
On 30 October 2014, His Honour Judge Lapthorn made interim Orders appointing an Independent Children’s Lawyer (“ICL”), and for the children to live with the Applicant in Brisbane and spend supervised time with the Respondent at a contact centre.
On 18 June 2015, His Honour Judge Lapthorn made interim Orders that the Applicant have sole parental responsibility for the children and transferred the matter to the Family Court of Australia (as it was then named).
In May 2016, the Queensland Department of Communities, Child Safety and Disability Services (as it was then named) (“the Department”) intervened and subsequently commenced proceedings in the Children’s Court in Brisbane on the basis that the children were in need of protection while in the Applicant’s care. This intervention resulted in the children being placed with the Respondent in September 2016.
The Respondent then returned to City L, New South Wales, with the children. The children have resided with the Respondent since 2016.
In December 2017, the Children’s Court proceedings in Queensland were completed and the Chief Executive of the Department was granted custody of both children for a period of 12 months. That Order expired in December 2018.
On 14 December 2017, the Department formally joined the Family Court proceedings.
On 5 December 2018, Baumann J made the following interim Orders in the Family Court (as it was then known):
1.That commencing upon the expiry of the current child welfare orders made by the Children's Court of Queensland [in late] 2017:
a. The children, [X] born [in] 2003 and [Y] born [in] 2004 (“ the children”) live with the father in the [City L] area;
b. The children shall spend no physical time with the mother;
c. The children shall communicate with the mother strictly on the following terms:
i.All telephone calls are to be initiated by the children (or one of them);
ii.The father shall provide the children with the mother’s current mobile phone number;
iii.The father shall ensure that the children’s mobile phone, when used to telephone the mother, shall not reveal the children’s telephone number (that is caller ID shall be disabled);
iv.The father shall encourage the children to telephone the mother at least on Christmas Day, the mother’s birthday; Mother’s Day and the children's birthday; and
v.All telephone calls shall be unrecorded.
The proceedings were also transferred from Brisbane to the Sydney registry of the Family Court, and a new ICL was appointed in New South Wales.
On 18 February 2019, leave was granted to the Department to withdraw from the proceedings.
On 17 April 2019, the parties were ordered to file and serve a trial affidavit by 4 pm on 26 July 2019.
On 13 August 2019, the Court ordered the Applicant to file and serve a trial affidavit by no later than close of Registry filing on 13 September 2019. All extant applications were adjourned to 5 November 2019.
On 5 November 2019, the Applicant’s time to file her trial affidavit was extended to close of Registry filing on 10 January 2020.
On 15 November 2019, the Applicant filed a Notice of Child Abuse, Family Violence or Risk of Family Violence together with an affidavit. The affidavit was not intended to be relied on at the final hearing.
On 10 February 2020, the Court ordered the parties and the children to attend a Child Inclusive Conference with a Senior Family Consultant. A Child Inclusive Memorandum dated 25 February 2020 was provided to the parties on 27 February 2020.
Due to the COVID-19 pandemic and the inability to conduct final hearings in person, the final hearing listed on 20 – 21 April 2020 was vacated.
The new hearing dates commencing 18 January 2021 were also vacated for the same reasons. The matter was then listed for hearing on 19 April 2021 to determine the following outstanding applications of the Applicant:
(a)Application in a Case filed 15 November 2019, seeking a stay of orders;
(b)Application in a Case filed 17 July 2020, seeking a review of the decision of a Registrar in respect of her Application – Contempt document; and
(c)Application in a Case filed 17 March 2021, seeking to join the children to the proceedings, and again, a stay of Orders dated 8 December 2018 and a stay of Orders dated 15 November 2019, and the issue of various subpoenas.
The ICL filed a Case Outline on 15 April 2021, submitting that:[1]
The children have consistently expressed a wish that this litigation would end. They have clearly stated that they do not wish to participate in any therapy with the parents and will not participate in any further interviews.
…
They have been interviewed by at least seven experts and have been represented by two ICLs. It is not in their interests to have further interviews or interventions.
[1] Case Outline document filed by the Independent Children’s Lawyer on 15 April 2021, page 5.
On 16 April 2021, the Applicant sought to file a further affidavit, together with a Notice of Constitutional Matter pursuant to the Judiciary Act 1903 (Cth), ahead of the final hearing listed for 19 April 2021.
On 19 April 2021, leave was granted by Harper J for the Applicant to file in Court an Application in a Case. The filed Application sought that Harper J recuse himself on the grounds of bias. She also made an oral application seeking an adjournment of the proceedings on the basis of her Notice of Constitutional Matter filed 19 April 2021.
The Application in a Case filed by the Applicant on 19 April 2021, along with her various outstanding Applications filed 15 November 2019, 17 July 2020 and 17 March 2021 as referred to above, were dismissed. The oral application requesting the proceedings be adjourned was also refused. Harper J delivered an ex-tempore decision on 19 April 2021.[2]
[2] Pitman & Hynes [2021] FamCA 300.
On 10 August 2021, the Applicant filed an Application – Contempt seeking interim and final orders. The Applicant filed further affidavits in relation to her Application – Contempt on 16 November 2021, and 14 and 17 March 2022. This Application was heard and dismissed by the Honourable Justice Schonell on 21 March 2022.
On 10 March 2022, the Applicant emailed the Court requesting that a subpoena be issued to the adult child X to give evidence. This request was refused by a Judicial Registrar on 14 March 2022.
On 27 April 2022, the Court sent an email to the parties in the following terms:
The parties’ attention is directed to the fact that the oldest child subject to the proceedings has now reached the age of 18 and the youngest child is due to turn 18 [in] 2022. Accordingly, the court raises with the parties the issue of the continued utility of the parenting proceedings.
The parties’ attention is also directed to the overarching purpose set forth in section 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which came into operation on 1 September 2021, as well as the duties of parties to act consistently with the overarching purpose set forth in s 68, and the powers of the Court to make case management orders set forth in s 69, and particularly ss 69(4).
The court will give consideration to disposing of the proceedings on a final basis. The court will provide the opportunity to the parties, and expects them to be in a position, to make submissions on 25 May [2022] as to why the court should not either dismiss all the outstanding applications or simply confirm the existing orders as final orders until the youngest child reaches [her] majority.
The Applicant then filed a further Application – Contempt on 29 April 2022.
Another application in a proceeding (Application – Contempt) was filed by the Applicant on 16 May 2022.
On 25 May 2022, the existing interim parenting orders concerning Y were made as final orders up to and including Y’s birthday in 2022. The Applicant’s application for parenting orders, and all outstanding interim applications, were dismissed except for the Applications - Contempt filed by the Applicant on 29 April 2022 and 16 May 2022.
The Court also acknowledged that the role of the ICL was coming to an end, and ordered that the ICL be discharged from 25 May 2023.
On 20 February 2023, directions were made for the Applicant to effect service on the Respondent by leaving a copy of the Application – Contempt and Affidavit filed 29 April 2022 on the front doorstep of his home in Suburb H, New South Wales.
On 6 March 2023, the Applicant filed an Affidavit of Service purporting to serve the Respondent pursuant to the directions made on 20 February 2023. Orders were also made finalising the Application in a Proceeding filed 16 May 2022 as to service, and referring the Application – Contempt filed 29 April 2022 for allocation of a hearing before a Division 2 Judge.
On 12 April 2023, the Applicant was ordered to file and serve written submissions by no later than 4 pm on 3 May 2023.
In mid-2023, an Apprehended Violence Order was put in place for the protection of the Respondent and the children from the Applicant.
On 31 August 2023, the matter was listed for hearing on 5 and 6 October 2023 to determine whether the Applicant has a prima facie case in relation to the Application – Contempt filed 29 April 2022.
The Court noted on 7 September 2023 that the provisions of section 102NA of the Family Law Act 1975 (Cth) (“the Act”) apply pursuant to Orders made by Harper J on 10 July 2020. The matter was listed for trial management hearing on 19 September 2023 for the purpose of assessing whether the parties had obtained representation under the section 102NA scheme in preparation for the final hearing. On that date, the Court was advised that the Applicant had secured legal representation and the Respondent was in the process of finalising representation with Legal Aid.
THE LAW
The Applicant brings this application under section 112AP(1)(b) of the Act which reads:
(1) Subject to subsection (1A), this section applies to a contempt of a court that:
…
(b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
In Carlson & Carlson [2020] FamCA 108 at paragraphs 9 – 11, the legal principles which apply were summarised as follows:
Any finding of contempt is reserved for those cases in which all other legitimate methods of enforcement have been exhausted and the subject conduct amounts to a challenge to the administration of justice rather than merely the enforcement of private rights (Cummings and Cummings (1976) FLC 90-100 at 75,460; Sahari and Sahari (1976) FLC 90-086 at 75,407 and 75,410; Ibbotson and Wincen (1994) FLC 92-496 (“Ibbotson and Wincen”) at 81,162).
To constitute a flagrant challenge to the Court’s authority, the breach of orders must be wilful, though not necessarily contumacious (Fauna Holdings Pty Ltd and Mitchell (No 2) (2000) FLC 93-053 at [64]; Hay & Hay (1998) FLC 92-819) and the conduct must be exceptional, striking, or repeated in nature (Ibbotson & Wincen at 81,162). Whether the subject conduct can be characterised in that way is said to be neither solely a finding of fact nor solely the exercise of discretion (Kendling and Kendling (Contempt) (2008) FLC 93-384 at 82,890-82,892).
It is well accepted that the onus of proof rests with the wife, as the applicant, to prove beyond reasonable doubt all elements of the contempt allegations, including the husband’s knowledge of both the terms and the meaning of the breached order (Witham v Holloway (1995) 183 CLR 525; Tate and Tate (2002) FLC 93-107 (“Tate and Tate”); Mead & Mead (2007) FLC 93-327 (“Mead & Mead”); Oakley & Millar [2019] FamCAFC 12 (“Oakley & Millar”) at [30]).
The parties agreed that these were the principles which apply in this case.
The Applicant also sought to bring the Court’s attention to section 112AP(2) of the Act. This did not form part of the formal pleadings in the matter and as a result, I have disregarded those submissions.
THE APPLICANT’S CASE
The Applicant prosecuted 13 separate counts of contempt against the Respondent.
The hearing proceeded in accordance with the procedure prescribed by rule 11.71(6) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The matter proceeded by way of submissions and the Applicant was not required for cross examination.
It is useful at this stage to capture a summary of the contentions of the Applicant. It is her case that the grounds of contempt she asserts occurred between 2016 and 2019.
The Applicant contends that the Respondent is in contempt of the Orders made under the Act in June 2015.
The Applicant’s case is that Orders made in the Childrens’ Court of Queensland were not registered in the Family Court. As a consequence, it is her case that the Children’s Court Orders are subject to the Orders made under the Act.
As part of this argument, the Applicant says that the Respondent is in contempt of the Act Orders because he should not have agreed for the children to be placed in his care by the Chief Executive of the Department.
The Applicant contends that the Respondent was aware of the Orders of 18 June 2015 and as such knew that he was breaching court orders in having the children live with him. She contends that this is a flagrant breach of the Orders made under the Act, and it is appropriate that the Respondent be dealt with under the contempt provisions of the Act.
The Applicant contends that the Children’s Court Orders only operate in Queensland and once the children moved to New South Wales, the Children’s Court Orders ceased to be operational and the Orders made under the Act were the operative orders.
The Applicant contends that because of the invalidity of the Children’s Court Orders in New South Wales, the Respondent had no right to have the children in his care, and had no right to receive any payment or funding from government departments.
I find that at the time the Department removed the children from the Applicant, they had authority to do so. There were lengthy proceedings (including appeals lodged by the Applicant) in the Children’s Court and the District Court in Queensland, and these resulted in orders that the children were placed firstly on an interim basis and then on a final basis for a period of 12 months in the care of the Chief Executive of the Department.
The Chief Executive, in the exercise of their authority, placed the children in the care of the Respondent in September 2016.
The Applicant has, persistently and across several jurisdictions, run her arguments as to the validity or otherwise of the competing orders. She has been unsuccessful in persuading any court that her interpretation of the law is correct.
She has had a long period of time to contemplate and to consider her position. She has had a long period of time to contemplate the impact of her bringing proceedings on her children.
None of that has caused any pause to the Applicant’s conduct. Indeed, in these proceedings she contemplated calling the adult children. It is unfathomable that after all the reports, judgments, and statements from her children, the Applicant has not desisted from a course of conduct that seeks to litigate matters relating to the children, even when they are adults.
The following exchange between the Applicant and myself is illustrative of the Applicant’s position:[3]
[3] Transcript of proceedings dated 5 October 2023, pages 83-85.
HER HONOUR: Are you saying that the Department of Communities and Justice, or whatever they are in Queensland ……
[MS PITMAN]: You can just call them CPS.
HER HONOUR: CPS manufactured evidence, or allowed the manufacture of evidence, against you?
[MS PITMAN]: Yes. I did already mention the corruption of that court, your Honour.
HER HONOUR: No. I’m just trying to get the bottom of it – allowed the manufacture of evidence against the mother, and that they did so maliciously at the behest of the father; would you go as far as that?
[MS PITMAN]: Yes. Yes, your Honour.
HER HONOUR: Thank you.
[MS PITMAN]: And I have, again, in my submission documents that were the annexure of what you did not admit as part of the affidavit – but they are now part of the submission documents – the recordings of those interviews that [X] took on his own admission – the recordings of – so that’s with the court report writer, [Dr G] – the recording of the interview that [Y] did with the court report writer, [Dr G] – and he’s not a court report writer – they weren’t court reports – they were children’s psychological reports – not court reports as we know it in the Family Court.
I also have the recordings and the transcripts of the meeting that [Mr Hynes] had in the [Town D] self-contained apartment, [Town D], with a case worker, where she does identify exactly what I said before – that the only reason the department was involved with the family was to pervert the course of justice in the Childrens Court.
HER HONOUR: Right. And that’s something that you firmly believe?
[MS PITMAN]: Yes.
HER HONOUR: Thank you.
[MS PITMAN]: And I firmly believe that, even more so - - -
HER HONOUR: And that was at the behest of the father?
[MS PITMAN]: That was - - -
HER HONOUR: And that was because they were working as agents of the father; is that right?
[MS PITMAN]: I don’t think we’ve got there yet, but – whichever one it was - - -
HER HONOUR: No. Please just confirm to me - - -
[MS PITMAN]: …… I’m just going back to the application.
HER HONOUR: No. Please listen. Come back up. Put your head up, please.
[MS PITMAN]: It’s the next one, your Honour. It’s absolutely the next one.
HER HONOUR: Yes, no, no. Put your head up and just confirm to me that you’re saying that she identified – this person identified that the only reason that CPS was involved was to pervert the course of justice in the Family Court. And my question to you was, do you believe that they did so maliciously and at the request of the father?
[MS PITMAN]: With intent. Absolutely. And I will say, your Honour, that the words are not pervert the course of justice.
During submissions, the Applicant continued to maintain her position as to the appropriateness of the current proceedings even when there was no reasonable basis for doing so.
During these proceedings, I find that the Applicant has deliberately sought to engage the Respondent in proceedings well beyond any reasonable reason for doing so. In seeking to engage the Respondent in these proceedings, the Applicant has acted in such a way to harass, annoy, and maintain a dispute which has no reasonable prospect of success.
I find that the grounds of contempt brought by the Applicant are based on a fundamental and wilful misunderstanding as to the interaction between Orders made under this Act and Children’s Court Orders.
Section 69ZK of the Act states:
(1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a) the order is expressed to come into effect when the child ceases to be under that care; or
(b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
(2) Nothing in this Act, and no decree under this Act, affects:
(a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or
(b) any such order made or action taken; or
(c) the operation of a child welfare law in relation to a child.
(3) If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first‑mentioned court may adjourn any proceedings before it that relate to the child.
In this matter, the Children’s Court of Queensland made orders relating to the children. Those Orders have not been the subject of successful challenge. To put it simply, once those Orders were made, they overrode the “Family Law” Orders. The Family Court (as it was then known) was aware of this, in that the interim Orders made by Baumann J on 5 December 2018 did not come into effect until the expiry of the Orders of the Children’s Court.
I will be seeking submissions at the conclusion of this judgment as to whether I should consider that the Applicant be bound by an injunction pursuant to section 102QB(2)(b) of the Act.
Ground 1
The Applicant alleges that on 26 July 2019, the Respondent filed an affidavit:[4]
…that identify as ‘NSW Police Customised Report’ inclusive of the disclaimer this document is the product of the NSW Police Force. Its contents must not be disseminated outside the service without the prior approval of the Commissioner of Police. Where ‘Annexure 5’ identifies the personal Police Report of the Applicant [Ms Pitman] dated [in] 2017 and [in] 2017 and the Police Report of the child in the matters of WOC 772 of 2011 [X] (dob 2003) dated [in] 2017. Documents identify that [Mr Hynes] did collude in unconscionable acts of corruption with the NSW Police – being a State Government Department of Justice – colluding with the NSW Police for the sole purpose of perverting the natural course of justice in the Family Court of Australia, perjuring himself as the person with Sole Parental responsibility for the child in direct breach of item #1. of the Orders dated 18th June 2015; and, item #1. of the Orders dated 13th February 2015; made by Judge Lapthorn in the matters of WOC 772 of 2011.
Court File Reference:- Affidavit of [Mr Hynes] sealed by the court at 26.07.2019
(emphasis as per original)
[4] Application – Contempt filed 29 April 2022.
These are serious allegations and they require precise drafting. That has not been the case in this matter.
The Applicant conceded in submissions that she had been subject to an interim and final Apprehended Violence Order that arose from this event. The Applicant further conceded that there had been no successful appeal against such an order.
The evidence relied on by the Applicant is the affidavit of the Respondent in the original proceedings relating to the children. In submissions, the Applicant said that the use of the subpoena material by the Respondent in his affidavit material perverted the course of justice in the face of the Orders of Judge Lapthorn.
The onus is on the Applicant to establish the very serious accusations that she raises in this ground. There is no credible evidence before the court that would support such allegations. Indeed I am of the view that the Applicant’s allegations in respect of wrongdoing are entirely baseless.
I do not accept this argument and I find that the Applicant has failed to establish that there is a prima facie case. This ground is dismissed.
Ground 2
The Applicant alleges that in early 2018 at 3.30 pm in City L:
The Respondent did present the child in the matter ([X] dob […] 2003) to [City L] Hospital Emergency Department and engaged the services of a state government department – being NSW Ministry of Health – [Region B] – utilizing the orders made in the lower State Court, perjuring himself as the person with Sole Parental responsibility for the child in direct breacg [sic] of item #1. of the Orders dated 18th June 2015; and, item #1. of the Orders dated 13th February 2015; made by Judge Lapthorn in the matters of WOC 772 of 2011.
Court File Subpoena Reference:- NSW [Region B] Health – [X]
(emphasis as per original)
The Applicant relied on records produced under subpoena from NSW Region B Health.[5]
[5] Exhibit A4.
The evidence tendered includes a notation taken by presumably hospital staff that reads:[6]
Mother got custody and [he] went to live with her and sister [Y] for over 3 years from age 9-12. States continuous court appearances while father fought for custody. Father won custody about 16 months ago and [X] and [Y] have been living with him since.
[6] Ibid, Discharge Referral for X (DOB: 2003) for admission date of early 2018 page 9 of 13.
The Applicant submits that because this was 9 months prior to the Orders of Baumann J and that the Respondent provided misinformation to NSW Region B Health. The contempt as argued by the Applicant is as follows:[7]
[MS PITMAN]: They are three reasons, your Honour, that – that document identifies that he said he had custody and had done so for approximately 16 months and that the children live with him . [sic] That’s the second contempt. The third contempt was that he provided misinformation about abuse, which [X] in that document states at no time was there ever any abuse.
[7] Transcript of proceedings dated 5 October 2023, page 41.
The grounds of contempt as pled in the Application are not clear that these are the alleged grounds of contempt. The Respondent is entitled to grounds which are clear and specific. The ground fails to reach a prima facie case on this basis.
The ground also fails because although the hospital notes record something, there is no evidence as to who spoke to the staff member recording the file note. On my reading of the note, it is just as likely that the information was received from the child.
The Applicant submits that the Court should ignore the Children’s Court Orders which were operational on these dates because the children were no longer located and residing in Queensland.[8]
[8] Ibid page 42.
I do not accept this argument and I find that the Applicant has failed to establish that there is a prima facie case. This ground is dismissed.
Ground 3
The Applicant alleges that in December 2017 at 5 pm:[9]
The Respondent did engage the services [City L] Police Officers in NSW being a state governed authority – being an Agency of the Crown governed by a NSW State Minister – perjuring himself as the person with Sole Parental responsibility for the sole purpose of perverting the natural course of justice in the matters on foot in Family Law Court of Australia, in order to continue to obtain benefit by deception, in direct breach of item #1. of the Orders dated 18th June 2015; and, item #1. of the Orders dated 13th February 2015; made by Judge Lapthorn, in the matters of WOC 772 of 2011
Court File Subpoena Reference:- NSW Police Customised Report – [Ms Pitman]
(emphasis as per original)
[9] Application – Contempt filed 29 April 2022.
The Applicant relied on a New South Wales Police Report in which the Respondent reported the Applicant.
The Applicant submitted that the documents read as follows:[10]
[MS PITMAN]: …This is paragraph 7 and 8, and it says:
Upon arrival I saw the accused standing by the side of the road with her son and I approached her and said words to the effect, ‘You didn’t listen, did you?’ The accused again began to tell police that her children have been kidnapped and held against their will. The accused went on to tell me that she intended to remove her son from the premise and take him to an address in [Town N].
(emphasis as per original)
[10] Transcript of the proceedings dated 5 October 2023, page 51.
The Applicant then submitted that:[11]
[11] Ibid pages 51-52.
[MS PITMAN]: At no time does this statement identify that [X], who is my son, who I did have sole parental responsibility for at the time, was objecting to being removed from the property. . There is included in this, there is a DVO application which I’m sure you’re aware, your Honour, by way of application the interim order gets enacted immediately. Okay. There’s a few things in here that I would just not even – okay. Paragraph – it’s not numbered. I will just tag next to it. In the application affidavit itself it says:
[In] December2017 child protection orders were granted in Queensland Children’s Court.
The orders aren’t in contention, your Honour. It’s how the orders were implemented that is that put [Mr Hynes] directly in contempt.
Both [X] and [Y] were the custody to the chief executive for 12 months. It states the children are to be in the care of their biological father, the –
nowhere do those orders state that. Those orders, as your Honour has already made play to, have been registered in this court and were done so, I believe, after this event took place, my understanding is the orders of the Children’s Court were registered in this court on 20 December 2017 and this event took place [a few days earlier]. In any case, your Honour, can reference and I can submit, if it’s required, a copy of the Children’s Court orders.
(emphasis as per original)
Again, it is not clear from the ground of contempt pled in the Application that this is the alleged contempt. The Respondent is entitled to grounds which are clear and specific. The ground fails to reach a prima facie case on this basis.
There is a fundamental and I am of the view wilful misunderstanding by the Applicant as to the operation of the Children’s Court Orders.
There is no evidence before me that would establish that the Respondent perjured himself or engaged in any behaviour that would establish that the Respondent was perverting the course of justice.
There is no evidence which supports any contention that the Respondent has engaged in a flagrant challenge to this Court.
I do not accept the evidence establishes a prima facie case for contempt. This ground is dismissed.
Ground 4
The Applicant alleges that on 17 May 2017 at 9.39 am in City L:[12]
The Respondent did use a NSW [City L] Council telecommunications carriage service to communicate directly with Child Protection Services (CPS) in the state of Queensland the following body of text:-
Of course I would like to have custody of [X] and [Y] with out the involvement of Child Safety Brisbane, under my own stewardship but I am aware that the former orders of that idiot Lapthorn are a hindrance to what would be the best outcome for [X] and [Y].“
***Identifies the Respondent projected ‘has a blatant disregard for court orders’ – referenced statement by the Respondent to CPS about [Ms Pitman]. Court File Subpoena Reference:- […] [Pitman v Hynes] […] – PAGE48 – identifying the sole purpose of engaging the services of CPS was to gain Sole Parental responsibility for the ‘the children’ by perverting the natural course of justice in the matters currently on foot in Family Law Court of Australia, and to continue to obtain benefit by deception, in direct breach of item #1. of the Orders dated 18th June 2015; made by Judge Lapthorn, in the matters of WOC 772 of 2011
Court File Subpoena Reference:- […] [Pitman v Hynes] […] – PAGE06..
(emphasis as per original)
[12] Application – Contempt filed 29 April 2022.
The context of this ground is that on 17 May 2017, the Respondent was replying to an enquiry by the Department following the removal of the children from the Applicant’s care.[13]
[13] Exhibit A9, email from Mr Hynes to Mr P dated 17 May 2017.
The Applicant submitted that:[14]
This correspondence alone identifies [Mr Hynes]’ contempt for the orders that were made by Lapthorn. He identifies Lapthorn – being Lapthorn J of the FCC – as an ‘idiot’. That’s a flagrant challenge that’s in the face of the court directly.
[14] Transcript of the proceedings dated 5 October 2023, page 58.
I do not find the Respondent writing to another person or body that a judge is an “idiot” is a flagrant challenge to the authority of this Court.
As a consequence, this ground must fail.
Ground 5
The Applicant alleged that between 9 September 2016 and December 2018:[15]
The Respondent did enrol ‘the children’ into an education facility in the [City L] Area located in NSW and engaged the services of a state government department – being NSW Department of Education – perjuring himself as the person with Sole Parental responsibility for the child in direct breach of item #1. of the Orders dated 18th June 2015; and, item #1. of the Orders dated 13th February 2015; made by Judge Lapthorn in the matters of WOC 772 of 2011.
Court File Subpoena Reference:- [O School]
(emphasis as per original)
[15] Application – Contempt filed 29 April 2022.
In this ground, the Applicant relies on the submission that:[16]
[MS PITMAN]: I know we’re not in Queensland, which is how this whole contempt has happened. But the reality is, in Queensland, the Childrens Court Magistrate is a separate court in its making. It is identified that it does not sit in the hierarchy of 5 courts – separate and independent. The only way that you can appeal in the Childrens Court is to do so through the Magistrates Children Court appellate. This is not just an error of law. It is not for this court. I understand that. But they are the orders that [Mr Hynes] travelled interstate with.
[16] Transcript of proceedings dated 5 October 2023, page 62.
The Applicant submitted that the orders of the Children’s Court of Queensland were not the applicable orders once the children were removed from Queensland. I find that this submission is an error in interpreting the law.
The Applicant has failed to establish a prima facie case on this ground and as a result, this ground must fail.
Ground 6
The Applicant alleged that between 9 September 2016 and December 2018:[17]
The Respondent did register ‘the children’ with a Medical Practitioner Service Provider in in the [City L] Area located in NSW and engaged the services of a state government department – being the NSW Ministry of Health – perjuring himself as the person with Sole Parental responsibility for ‘the children’ in direct breach of item #1. of the Orders dated 18th June 2015; and, item #1. of the Orders dated 13th February 2015; made by Judge Lapthorn in the matters of WOC 772 of 2011.
Court File Subpoena Reference:- [Q Medical Centre]
(emphasis as per original)
[17] Application – Contempt filed 29 April 2022.
As already noted, the Applicant submitted that the orders of the Children’s Court of Queensland were not the applicable orders once the children were removed from Queensland. I find that this submission is an error.
The Applicant has failed to establish a prima facie case on this ground and as a result, this ground must fail.
Ground 7
The Applicant alleges that between 9 September 2016 and December 2018:[18]
The Respondent did receive financial benefit by identifying ‘the children’ as dependents on his personal taxation return with the Australian Taxation Office being a federal government department – perjuring himself as the person with Parental responsibility for ‘the children’ between the years of 2011 and 2019 in direct breach of item #1. of the Orders dated 18th June 2015; and, item #1. of the Orders dated 13th February 2015; made by Judge Lapthorn in the matters of WOC 772 of 2011.
Court File Subpoena Reference:- Subpoena for financial and ATO records of [Mr Hynes] to be produced submitted in the Court on 23.03.2020 – awaiting filing for service
(emphasis as per original)
[18] Ibid.
As noted previously, the Applicant submitted that the orders of the Children’s Court of Queensland were not the applicable orders once the children were removed from Queensland. I have already found that this submission is an error.
There is no evidence of any perjury by the Respondent. The operative orders at the time were the orders of the Children’s Court of Queensland.
The Applicant has failed to establish a prima facie case on this ground and as a result, this ground must fail.
Ground 8
The Applicant alleges that between 14 September 2016 and December 2018:[19]
The Respondent did identify himself as the Registered ‘Carer’ of ‘the children’ with the Office of Centrelink, and the Child Support Agency – being divisions of the Federal Government Department of Social Services – for the sole purpose of obtaining financial benefit by deception to receive monetary payments from the Federal Government ‘Carers Allowance’ and/or Family Tax Benefit payments, and monetary payments from the Applicant Mother - perjuring himself as the person with Sole Parental responsibility for the ‘the children’. The Court Record identifies the Respondent did state to CPS ‘[Mr Hynes] will look into what Centrelink payments are available to him.’
***Identifies the Respondent did profiteer from ‘the children’ in direct breach of item #1. of the Orders dated 18th June 2015; and, item #1. of the Orders dated 13th February 2015; made by Judge Lapthorn, in the matters of WOC 772 of 2011.
Court File Reference:- […] [Pitman v Hynes] […] – PAGE182
(emphasis as per original)
[19] Ibid.
The Applicant submitted that the orders of the Children’s Court of Queensland were not the applicable orders once the children were removed from Queensland. This submission is an error.
There is no evidence of any perjury by the Respondent. The operative orders at the time were the orders of the Children’s Court of Queensland.
The Applicant has failed to establish a prima facie case on this ground and as a result, this ground must fail.
Ground 9
The Applicant contends that from 14 September 2016 and then “daily” for an unspecified period:[20]
The Respondent did kidnap ‘the children’ from the State of Queensland by placing them on an aeroplane and transporting them to NSW by using actions of coercive control of the children, identifying himself as the adult who had ‘custody’ of the children, and threatening direct harm to family members should they not comply with his wishes – with the explicit intent of alienating the children from their family for the purposes of :
1. obtaining financial benefit by deception;
2. perpetrating acts of family violence; and
3. perverting the natural course of justice in the Family Court matters
perjuring himself as the person with Sole Parental responsibility for the ‘the children’ in direct breach of item #1. of the Orders dated 18th June 2015; and, item #1. of the Orders dated 13th February 2015; made by Judge Lapthorn, in the mattes of WOC 772 of 2011.
Court File Subpoena Reference:- […] [Pitman v Hynes] FILE04 […] – PAGE44
[20] Ibid.
The Applicant submitted that the orders of the Children’s Court of Queensland were not the applicable orders once the children were removed from Queensland.
There is no evidence of any kidnapping by the Respondent. The operative orders at the time were the orders of the Children’s Court of Queensland.
There is no evidence to support the Applicant’s contention that the Respondent has acted improperly in dealing with Government Departments.
The Applicant has failed to establish a prima facie case on this ground and as a result, this ground must fail.
Ground 10
The Applicant contends that from 9 September 2016 and then “daily” for an unspecified period in City L:[21]
The Respondent did remove ‘the children’ from the [R School] grounds and did forcibly refrain ‘the children’ from returning to their familial residence with their mother in Queensland – with the explicit intent of alienating the children from their family for the purposes of :
1. obtaining financial benefit by deception;
2. perpetrating acts of family violence; and
3. perverting the natural course of justice in the Family Law matters
perjuring himself as the person with Sole Parental responsibility for the ‘the children’ in direct breach of item #1. of the Orders dated 18th June 2015; and, item #1. of the Orders dated 13th February 2015; made by Judge Lapthorn, in the mattes [sic] of WOC 772 of 2011.
Court File Subpoena Reference:- […] [Pitman v Hynes] FILE04 […] – PAGE44
[21] Ibid.
The Applicant submitted that the orders of the Children’s Court of Queensland were not the applicable orders once the children were removed from Queensland. I find that this submission is an error.
There is no evidence of the Respondent forcibly refraining the children from returning to Queensland. The operative orders at the time were the orders of the Children’s Court of Queensland.
The Applicant has failed to establish a prima facie case on this ground and as a result, this ground must fail.
Ground 11
The Applicant contends that on 19 May 2016 in Brisbane:[22]
The Court Record identifies the Respondent did state to CPS ‘[Mr Hynes] advised that after the parents had split up the children remained living with [Ms Pitman] and he found his own accommodation. During this time [Mr Hynes] was working a job that required him to travel often and upon returning from a work travel trip he found that [Ms Pitman] had left NSW with the children. [Mr Hynes] advised he was not aware of her plan at all to relocate with the children. [Mr Hynes] advices [sic], through the assistance of NSW police, he located [Ms Pitman] and the children in Brisbane approximately 10 weeks later. [Mr Hynes] advised he made attempts to see the children in Brisbane and travelled to Brisbane several times however [Ms Pitman] would not show up with the children. At this time there were no FLC orders in place and as such he initiated proceedings in the FLS and these proceedings remain current. [Mr Hynes] advised there has been 2 mentions for the proceedings and on the second mention the court ordered supervised contact. [Mr Hynes] advised he agreed to any contact the court was willing to put in place as it had been sometime since he had seen the children, and was desperate to have contact with them. [Mr Hynes] advised there were only 2 contact visits between he and the children because [Ms Pitman] refused to bring the children, despite contact being court ordered. [Mr Hynes] advised the first contact visit was ‘great’ and the second was ‘good’. A third visit was scheduled and [Mr Hynes] attendee [sic] this however [Ms Pitman] never attended with the children. Further visits were then booked but [Ms Pitman] would ‘make up a million excuses’ as to why contact could not occur and also stated that contact ‘stressed the children’ and as such it could not occur. [Mr Hynes] advised he has tried to reason with [Ms Pitman] and flew to Brisbane in November 2015 and had a barrister meet with [Ms Pitman] to come to an agreement regarding contact with the children however this only resulted in an agreement that [Mr Hynes] would not contact her for a year. [Mr Hynes] advised it is mostly [Ms Pitman] who contacts him asking for money. [Mr Hynes] believes [Ms Pitman] has a blatant disregard for court orders.’
***Identifies the Respondent did fraudulently engage the services of CPS by way of fraudulent deception, making an intentional false allegation of Parental Alienation against the Applicant Mother. QCC Records identify the Respondent stated words to the effect ‘did travel to Brisbane on more than 20 occasions in the past year’ and at all times had been alienated from his children, identifying the mother to be a person who suffers from a severe mental illness and to be a person who ‘has a blatant disregard for court orders’. For the sole purpose of perverting the natural course of justice in the matters on foot in Family Law Court of Australia, in order to obtain benefit by deception; in direct breach of item #1., #3. and #4. of the Orders dated 18th June 2015; and, item #1. of the Orders dated 13th February 2015; made by Judge Lapthorn, in the matters of WOC 772 of 2011.
Court File Subpoena Reference:- […] [Pitman v Hynes] […] – PAGE48.
(emphasis as per original)
[22] Ibid.
These proceedings are not the place to litigate areas of factual dispute between the parties. This matter has an extraordinary history and has been litigated across numerous jurisdictions.
This ground is plagued by the misunderstanding the Applicant has as to the law. I find that the Applicant has failed to establish that any order of this Court has been breached by the Respondent. As a consequence, I find that the Applicant has failed to establish a prima facie basis to proceed on this ground.
Ground 12
The Applicant contends that on 23 March 2016 in Brisbane:[23]
The Respondent did provide documents from the Family Law Court matters to an external party without leave of the Court under s121 of the Family Law Act 1975 (Cth). Handwritten file note identifies ‘[Mr Hynes] – ‘These DOCS belong to the father [Mr Hynes] . They need to be returned. They include a transcript that we don’t have.’ ‘[Dr E and Mr F]’
***Identifies the Respondent did illegally provide documents contained in the Family Court of Australia - File WOC 772 of 2011 [Pitman v Hynes] to initiate matters in the lower Children’s Court of Queensland for the sole intention of acting with flagrant challenge to the Court by perverting the Course of Natural Justice in direct breach of the Orders dated 18th June 2015; and, of the Orders dated 13th February 2015; made by Judge Lapthorn, in the matters of WOC 772 of 2011.
Court File Subpoena Reference:- […] [Pitman v Hynes] FILE01 […] – PAGE03
(emphasis as per original)
[23] Ibid.
The evidence relied on by the Applicant is a file note in subpoena records which read “These DOCS belong to the father [Mr Hynes].”
There is no evidence that the Respondent provided the documents. The Applicant fails to prove beyond reasonable doubt that the Respondent provided the documents or even what the documents were.
There is no evidence that could satisfy the Court beyond reasonable doubt that the Respondent acted in a way which was a flagrant breach of orders of this Court. As a consequence, this ground is dismissed.
Ground 13
The Applicant contends that between 18 July 2016 and 13 September 2016 in City L:[24]
[24] Ibid.
The Respondent did receive financial benefit by deceit in being identified as the Second Respondent in the matters that were listed before the Childrens Court of Queensland.
•Court File Reference:- […] [Pitman v Hynes] FILE04 […] – PAGE35 handwritten file note identified as being penned personally by the Respondent identifies ‘[Mr Hynes]’ ‘BSB […]’ – ‘Account […]61’ – ‘[S Bank]’
•Court File Reference:- […] [Pitman v Hynes] FILE04 […] – PAGE3 – Identifies a direct funds transfer on 18.07.2016 of:- $514.25
•Court File Reference:- […] [Pitman v Hynes] FILE04 […] – PAGE30 – Identifies a direct funds transfer on 31.08.2016 of:- $2,019.52
•Court File Reference:- […] [Pitman v Hynes] FILE04 […] – PAGE44 – Identifies a direct funds transfer on 13.09.2016 of:- $3,394.42
***Identifies the Respondent did kidnap ‘the children’ from the State of Queensland – with the explicit intent of profiteering and alienating the children from their family by engaging in fraudulent acts resulting in flagrant challenge to the Court, by way of:
1. obtaining financial benefit by deception;
2. perpetrating acts of family violence; and
3. perverting the natural course of justice in the matters on foot in the Family Law Court,
in direct contravene of item #1. of the Orders dated 18th June 2015; and, item #1. of the Orders dated 13th February 2015; made by His Hon. Judge Lapthorn, in the matters of WOC 772 of 2011.
(emphasis as per original)
The Applicant relies on payments made by the Department to the Respondent. The children were under the care of the Department. The children were placed by the Department with the Respondent.
I find that these payments by the Department to the Respondent do not provide any evidence for the Applicant’s allegations above. It is for the Department to determine, through their own processes, whether money is paid to any person.
The Applicant has failed to establish a prima facie case on this ground and as a result, this ground must fail.
CONCLUSION
Having heard submissions and considered the tendered evidence, I find that there is no prima facie case in relation to grounds 1 – 13.
I therefore dismiss the Application – Contempt filed by the Applicant.
I will invite the parties to provide written submissions of no more than 3 pages as to the Respondent’s application that pursuant to section 102QB(2)(b) of the Act, the Applicant be prohibited from instituting further proceedings without leave.
I make Orders accordingly.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lioumis. Associate:
Dated: 19 January 2024
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