Pitman & Hynes (No 2)
[2022] FedCFamC1F 373
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pitman & Hynes (No 2) [2022] FedCFamC1F 373
File number(s): WOC 772 of 2011 Judgment of: HARPER J Date of judgment: 25 May 2022 Catchwords: FAMILY LAW – CHILDREN – Summary dismissal – Applicant Mother seeks parenting orders – Where contempt allegations and Covid-19 have delayed final determination of parenting proceedings – Where the father has sole parental responsibility and the two children may only initiate contact with the mother if desired – Where children have not had contact with the mother since 2016 – Where children have consistently expressed the view that they wish no contact with the mother – Eldest child has turned 18, younger child will reach 18 in 2022 – Father and ICL apply for summary dismissal pursuant to s 46 of the Federal Circuit and Family Court of Australia Act2021 (Cth) – Where mother has no reasonable prospects of success – Separate discussion of the principles for conducting child related proceedings – Section 69ZN of the Family Law Act1975 (Cth) – Court is to consider the needs of the child and impact of proceedings on the child – Court is to actively direct, control and manage the conduct of proceedings – Mother’s Application for final parenting orders dismissed – Existing interim parenting orders be made as final orders concerning one child – All outstanding interim applications filed by the mother dismissed – Where dismissal of Application does not affect outstanding Application – Contempt – Independent Children's Lawyer discharged twelve months from orders. Legislation: Family Law Act 1975 (Cth) ss 68LA, 69ZN(3)–(7), 69ZQ(1)(a)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46 and 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04
Cases cited: Pitman & Hynes [2018] FamCA 101
Pitman & Hynes [2021] FamCA 3005
Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 25 May 2022 The Applicant: Litigant in person The Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Rebehy Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
WOC 772 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PITMAN
Applicant
AND: MR HYNES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
25 MAY 2022
THE COURT ORDERS THAT:
1.The existing interim parenting orders concerning Y, born in 2004, be made as final orders up to and including 10 December 2022.
2.The Applicant Mother’s (“the mother”) application for parenting orders be dismissed.
3.All outstanding interim applications filed by the mother in these proceedings be dismissed.
4.Order 3 does not affect, and is without prejudice to the outstanding Applications – Contempt filed on 29 April 2022 and 16 May 2022 by the mother.
THE COURT NOTES THAT:
A.The role of the Independent Children’s Lawyer is at an end in these proceedings, subject to the question of whether any matter raised by the mother’s outstanding Applications – Contempt may impact upon the younger child between the date of these orders and 10 December 2022.
THE COURT FURTHER ORDERS THAT:
5.The Independent Children’s Lawyer be discharged at a date 12 months from the date of these orders.
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 the pseudonym Pitman & Hynes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J
These parenting proceedings between the Applicant Mother, Ms Pitman, who I will refer to as “the mother”, and the respondent father, Mr Hynes, “the father”, have a long and unfortunate history. They relate to the children of the relationship, X, born in 2003, and Y, born in 2004. The proceedings first commenced in 2011. However, the parties reconciled and discontinued them at that point. The parents then separated again, and in July 2014, the mother commenced proceedings in the Federal Circuit Court of Australia (as it was then known) seeking sole parental responsibility and other orders which it is unnecessary to set out.
The history of the proceedings up to November 2018 is set out in the judgment of Baumann J in Pittman & Hynes [2018] FamCA 1015 at paragraphs 2–6. Initially, the children lived with their mother and saw their father in a contact centre. Orders later provided for the mother to have sole parental responsibility and the children were to have no time with the father. The matter was transferred to the Family Court of Australia (as it then was) on 18 June 2015. The Queensland Department of Disability and Child Safety intervened in May 2016, and commenced proceedings in the Children’s Court in Brisbane on the basis that the children were in need of protection.
The children were then placed with the father in September 2016, with no contact with their mother. The father then moved his home to L City in New South Wales. In late 2017 in the Children’s Court at Brisbane, the Chief Executive of Child Safety Brisbane was granted custody of both children, until December 2018. The children have lived with the father since September 2016.
Interim orders were then made on 5 December 2018 for the children to live with the father, and for the father to have sole parental responsibility. The children were to spend no time with the mother, although they were able to initiate contact with the mother if they desired. This is the current arrangement.
The orders also transferred the proceedings to the Sydney registry of the Family Court and discharged the Queensland Independent Children’s Lawyer (“ICL”). A new ICL was then appointed in New South Wales.
On 18 February 2019, the matter was listed for a procedural hearing before a judicial registrar, and an order was made granting leave to the Department of Child Safety, Youth and Women to withdraw from the proceedings. This order was not opposed by the ICL or the parties. On 17 April 2019, the parties were ordered to file and serve a trial affidavit upon which they intended to rely by no later than 4.00pm on 26 July 2019. This order was not complied with, at least by the mother.
On 13 August 2019, the court ordered the mother 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 at 2.15pm for mention and callover. On 15 November 2019, a Notice of Child Abuse, Family Violence, or Risk of Family Violence Notice was filed by the mother, together with an affidavit sworn on 15 November 2019. This was not an affidavit intended to be used at final hearing. On 30 January 2020, the court ordered the ICL to take all necessary steps to obtain an updated family report from Ms K, who had provided an earlier report, for the purposes of final hearing. This did not happen for several reasons which need not be explained here.
On 10 February 2020, pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”), the court ordered the parties and the children to attend a Child Inclusive Conference with a Senior Family Consultant, nominated by the child dispute section in the Sydney Registry on 25 February 2020. The court requested that the Senior Family Consultant give specific consideration to the issue of family reunification therapy, something which the mother contended should be undertaken prior to any final hearing. On 27 February 2020, after the Senior Family Consultant interviewed the children and the parties, a Child Inclusive Conference memorandum dated 25 February 2020 was sent to the parties. Under the heading, ‘Future Directions’ at paragraphs 35–38, the Senior Family Consultant said:
35. [X] and [Y] have expressed firm views about their seeing or communicating with the mother and about their participation in the reunification therapy as proposed by [Ms Pitman]. They presented as being mature for their age and considered in their responses.
36. The history suggests the children have been interviewed by a number of professionals for proceedings in the Children’s Court and in family law proceedings and these reports have not been read by the Family Consultant for this conference. At this Child Inclusive Conference, [X] and [Y] clearly express a view about not seeing or communicating with their mother and, given their respective ages and level of maturity, it is suggested that the Court place significant weight on their wishes. Teenagers who feel forced or coerced into following Orders made by the Court can often feel their views are not being taken into account, increasing their sense of having no control over their lives, and this can harden their views against the person they see is forcing their hand. [X’s] openness to connecting with his mother in the future, in the least, leaves the door open for his relationship with his mother to be repaired at some time in the future. Teenagers who are estranged from a parent can often reach out to that parent at critical times in their development, such as if they begin to have relationships with peers, or they face some kind of trouble.
37. While both [X] and [Y] present as well-behaved and compliant young people, there is a high probability that they would simply refuse to comply with any Orders made by the Court for them to participate in therapy with their mother. [X] himself said that he is doing well at the moment and it may cause him emotional turmoil if he were to be reconnected with his mother at this time, against his expressed wishes. [Y] suffers from anxiety, and it seems likely that her mental health will also be at risk if she were to be reconnected to her mother at this time, against her expressed wishes.
38. The Family Consultant considers that without [X] and [Y] being committed to any kind of therapy with their mother, their involvement will be counterproductive in that it may harden their feelings towards her. Reunification therapy does not seem to be an option appropriate for [X] and [Y].
On 26 March 2020, I ordered all extant applications to be listed on 1 April 2020 at 12.00pm for mention. On 1 April 2020, by reason of disruptions caused by the COVID-19 pandemic, and the inability to conduct a final hearing in person, I ordered that the dates for final hearing listed on 20 and 21 April be vacated. On 10 July 2020, I made orders pursuant to s 102NA of the Act, which should have resulted in both parties being represented at final hearing. I also listed the proceedings for final hearing, with an estimate of three days, to commence face to face on 18 January 2021, together with further orders for the parties to file and serve updated consolidated trial affidavits, and the preparation of tender bundles and case outlines.
The mother, meanwhile, attempted to file an application alleging contempt by the father. A registrar refused to accept the document for filing because it was in the wrong form. On 17 July 2020, the mother filed an application in a case in the Family Court of Australia seeking a review of the decision of the registrar not to accept her Application – Contempt. On 31 August 2020, I ordered all outstanding applications, including the Application – Contempt to be stood over to 18 January 2021. I noted that the court was not satisfied that the allegations made by the mother were sufficiently urgent to be dealt with prior to the final hearing listed to commence on 18 January 2021.
The mother filed no updated consolidated trial affidavit. Rather, on 24 December 2020, the mother filed an affidavit attaching an Application in a Case cover sheet, seeking orders relating to parenting proceedings and the enforcement of parenting orders, a review of the decision of the registrar, and costs. The mother included a Letter of Urgency, also dated 24 December 2020. Then, on 8 January 2021, the mother filed another affidavit which took the form of an Application in a Case, seeking orders for the children to be joined to the proceedings.
On 13 January 2021, I ordered the final hearing listed to commence on 18 January 2021 for three days to be vacated, again by reason of the COVID-19 pandemic and restrictions on face-to-face hearings. All outstanding applications were stood over to 11 March 2021 at 10.00am for callover. They were then listed for hearing on 19 April 2021. The mother filed further affidavits on 11, 15, and 23 March 2021. These affidavits related to her numerous interlocutory applications, not final hearing.
The mother’s outstanding applications which were listed for hearing on 19 April 2021 can be summarised as follows:
(a)an Application in a Case filed 15 November 2019, seeking a stay of orders;
(b)an 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)an Application in a Case filed on 17 March 2021, seeking to join the children to the proceedings, and again, a stay of orders of 8 December 2018 and a stay of orders of 15 November 2019, and the issue of various subpoenas.
By her Case Outline filed on 15 April 2021, the ICL reported to the court that the children do not wish to engage with, or actively participate in the court proceedings. It is not in their interest to join them as parties, or involve them further. The mother sought to file a further affidavit on 16 April 2021, which was a Friday before the hearing listed on 19 April 2021, together with a Notice of Constitutional Matter, pursuant to the Judiciary Act 1903 (Cth). On 19 April 2021, I granted leave to the mother to file in court an Application in a Case emailed on 19 April 2021, and supporting affidavits sworn the same date. This application sought an order that I recuse myself on the grounds of apprehended bias. The mother also sought an adjournment of the proceedings on the basis of her Notice of Constitutional Matter.
I delivered an ex tempore decision on 19 April 2021; see Pitman & Hynes [2021] FamCA 300. I ordered the Application in a Case filed by the mother on 19 April 2021 be dismissed, and the mother’s oral application requesting the proceedings be adjourned, on the basis of her Notice of Constitutional Matter, be refused. I did so because the purported notice did not in truth raise any real constitutional issue. I also dismissed the mother’s various applications enumerated above at paragraph 13 after she had left the courtroom.
On 10 August 2021, the mother then filed an Application – Contempt seeking interim and final orders. She filed an Affidavit of Service in relation to that application on 1 September 2021. The application was case-managed by a judicial registrar, and allocated to another judge. Proceedings were then listed for further callover on 25 May 2022. The mother 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 Schonell J on 21 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 mother then filed a further Application – Contempt on 29 April 2022. Another application in a proceeding (Application – Contempt) was filed by the mother on 16 May 2022. The mother sought for this to be dealt with ex parte in chambers for the purposes of administrative directions, and for service to take place by electronic communication. When the matter came before the court on 25 May 2022, the parties were given the opportunity to make oral submissions in accordance with the email dated 27 April 2022. The father and the ICL supported the dismissal of the mother’s parenting applications, and that the existing interim parenting orders become final in relation to the younger child.
The mother resisted this course. As I understood her arguments, they were to the effect that it was not in the interests of justice or proper procedural practice for the court to allow the parenting proceedings to go any further, where there were allegations of criminal conduct by the father, which related in some way to a minor. As I understood the purport of the mother’s submissions, it was to the effect that the parenting proceedings which she herself commenced, and which now only relate to the younger child Y, should continue to be held hostage to the applications of a contempt nature, which she has made against the husband. I do not agree.
Since the hearing on 19 April 2021, the provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) commenced on 1 September 2021, as did the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The now-repealed Family Law Rules 2004 (Cth) governed the conduct of these proceedings until 1 September 2021. Since that day, therefore, the proceedings have been governed by the new legislation and rules. However, both the repealed rr 1.04 and 1.06, the new r 1.04, and the new legislation, s 67, imposed, and impose, a duty on parties to conduct litigation, and on the court to promote an overarching purpose to achieve a just and quick finalisation of proceedings at an appropriate cost.
In parenting proceedings, the overarching purpose must guide the parties and the court towards achieving the final outcome as soon as practicable in the best interests of the children. It is plain that there have been at least three vacated final hearings in this matter. The impact of the COVID-19 pandemic played a large part in these adjournments. However, it is also plain that, despite court orders and extensions of time, the mother, despite filing numerous applications and affidavits in support, has not actually ever focused on preparing, filing, and serving an affidavit in support of final parenting orders, which she propounds in the best interests of the children. Rather, she has filed and served numerous affidavits directed to making allegations of contempt against the father.
I express no view about these contempt allegations except to observe that they have had the effect of delaying final determination of the parenting proceedings, and have produced an outcome inconsistent with the expressed views of the children. The oldest child turned 18 in 2021. The court no longer has any jurisdiction in relation to this child.
The younger child will turn 18 in 2022.
The children have lived with the father since 2016, and have had almost no contact with their mother.
Section 68LA(5)(b) imposes a duty on an ICL to ensure that any views expressed by the child, in relation to the matters to which the proceedings relate, are fully put before the court. Moreover, s 68LA(7) and (8) provide as follows:
(7) The independent children’s lawyer may disclose to the Court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.
(8) Subsection (7) applies even if the disclosure is made against the wishes of the child.
The ICL has told the court throughout the proceedings since at least 2019, and in accordance with s 68LA, that the clear view of the children has been that they do not wish to have contact with their mother.
The evidence in the senior consultant’s memorandum (above at [8]) reinforces this evidence of these views of the children, at least while they have remained children.
I should record that the ICL in these proceedings has discharged her role with great professionalism, and is to be commended in the way she has conducted herself in a very difficult set of circumstances. In addition to assiduously obtaining the views of the children and putting them before the court, she has been very helpful to the parties, for example, by giving procedural support such as obtaining and facilitating access to documents.
These proceedings are child-related proceedings. Part VII of the Act is applicable. The court therefore must give effect to the principles set out in ss 69ZN(3)–(7), which fall in division 12A of Part VII, in performing duties and exercising powers in relation to the proceedings. The first principle to which effect must be given, is that the court is to consider the needs of the child concerned, and the impact that the conduct of the proceedings may have on the child, in determining the conduct of the proceedings. The second principle is that the court is to actively direct, control and manage the conduct of the proceedings. In giving effect to these principles, the court must, inter alia, decide which of the issues in the proceedings require full investigation and hearing, and which may be disposed of summarily (s 69ZQ(1)(a)). These provisions constitute a statutory imperative to consider the impact of further litigation on the welfare of a child.
The unhappy history of this matter, the failure of the mother to engage with preparation for any final hearing, and the ages of the children, combine to compel the conclusion that the mother, as the applicant for parenting orders, has no reasonable prospects of success. This conclusion warrants the court dismissing the mother’s application for parenting orders, pursuant to s 46 of the new Act. This I understood to be the application of the father and the ICL.
In addition, and separately, I consider it would best achieve the overarching purpose, discharge the duty to promote the overarching purpose, and give effect to the principles set out in s 69ZN, for the mother’s application for parenting orders to be dismissed now, and for the existing interim parenting orders to be made as final orders, as proposed by the father and the ICL, for the short balance of the younger child’s minority.
The existence of outstanding Applications – Contempt, filed on 29 April 2022 and 16 May 2022 by the mother against the father, does not change these conclusions. In the circumstances, I see no reason why those applications should be determined before disposing of the parenting proceedings, so as to release the younger child from the burden of being the subject of any further litigation. The mother’s contempt applications can be dealt with separately, and at a later time.
For the foregoing reasons, the orders set forth at the commencement of this judgement will be made.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 25 May 2022. Associate:
Dated: 25 May 2022
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