SALTON & FARRADAY

[2020] FCCA 770

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALTON & FARRADAY [2020] FCCA 770

Catchwords:
FAMILY LAW – Contravention – serious disregard of orders.

Legislation:

Family Law Act 1975 (Cth), ss.70 NAC, 70 NAD, 70 NFB

Applicant: MR SALTON

Respondent: MS FARRADAY

File Number: CSC 798 of 2011

Judgment of: Judge Willis AM

Hearing date: 6 March 2020

Date of Last Submission: 6 March 2020

Delivered at: Cairns

Delivered on: 6 March 2020

REPRESENTATION

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: Self-represented

ORDERS

THE COURT FINDS that the Mother has contravened the Orders (in serious disregard of the Orders) of the Federal Circuit Court of Australia made on 21 March 2017 without reasonable excuse on counts 1, 3 and 4 of the Application for Contravention filed 28 October 2019.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. The Mother is to act in compliance with the Orders and do all acts and things to restore the living arrangements of the children where they live in City A  pursuant to the Orders of 21 March 2017.

2. In the event the Mother decides she is not returning to live in City A (which is what the Mother has indicated to the Court), the Mother is to do all acts and things to return the children X born in 2007, Y born in 2008 and Z born in 2010 (“the children”) to live with the Father on either Saturday 7 March 2020 on flight … or a similar flight on Sunday 8 March 2020 or at the latest a flight on early Monday morning 9 March 2020.

3. The Mother is to provide the Father a copy of the children’s travel itinerary setting out their specific return flights to City A, by email forthwith.

4. The children are to thereafter live with the Father NOTING THAT the Mother says she will not be returning to live in City A.

5. In the event the Mother returns to live permanently in City A in the foreseeable future the parties will revert to the Orders of 21 March 2017.

6. In the event the Mother does not return to City A forthwith, notwithstanding the Order for Equal Shared Parental Responsibility (Orders 1 and 2 of the Orders of 21 March 2017), the Father is permitted to:

   (a)Enrol the children in their respective and closest schools to his home, without the approval of the Mother NOTING THAT the Father is granted sole parental responsibility in relation to education matters only; and

   (b)Organise counselling for the children at a location nominated by him.

7. Upon the return of the children to the Father in City A, pursuant to the terms of Order 1, they are to have no telephone/ FaceTime/ electronic contact with the Mother for a period of 10 days to allow them to settle with the Father. Thereafter, the Father can nominate at least two occasions each week for the children to have telephone contact with the Mother.

Recovery Order

1. In the event that the children are not returned to the Father by Monday, 9 March 2020, a Recovery Order will issue for the return of the children.  The Recovery Order is to lie in the Registry to be uplifted upon the Father filing an Affidavit deposing to the failure of the Mother to return the children to his care pursuant to Order 1 herein. 

2. That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

   (a)To find and recover the children X born 2007, Y born in 2008 and Z born in 2010 (“the children”) and to deliver the said children to the Respondent or such other place as the Respondent and the person effecting such recovery agree to be appropriate; and

   (b)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.

3. All Police Officers and agents referred to in this Order be at liberty to proceed on an email copy of this Order. 

4. This Order remains in force until further Order.

Restraints

1. Neither of the parties are to discuss directly or indirectly with the children:

   (a)Any of the evidence or anything that has occurred in Court today;

   (b)The future living arrangements of the children.

Other Orders

1. The Notice of Objection filed by the Mother on 2 March 2020 is dismissed.

2. The parties are permitted to view the Queensland Police Service subpoena material (Exhibit 1).

3. Orders 3 and 5 as set out in the Mother’s Application in a Case filed 3 March 2020 are struck out.

4. The Registry is not to accept any documents filed by the Mother unless it complies with the Federal Circuit Court Rules 2001 and in particular, annexures have an index and are paginated.

5. The matter is to be listed for sentencing of the Mother on 31 March 2020 at 10:00 am in the Federal Circuit Court of Australia at Cairns.

6. If the Mother has not returned to City A from the City B, the Mother is to contact the Court and request to appear by video-link from the Brisbane Registry, no less than three days prior to the Court event on 31 March 2020. 

NOTATION:

A.THE COURT NOTES THAT counts 1, 3 and 4 of the contravention which the Court found the Mother was in serious disregard, involves:

(a)A failure to deliver up the children to the Father for contact with the Father on alternate weekends and half of the Christmas Holidays, without reasonable excuse in breach of Order 9(b) of the Orders of 21 March 2017 from October 2019 until the date of this Order; and

(b)The Mother relocating the children to the City B and removing the children from their school in City A and re-enrolling the children in a school in South Queensland, without any reasonable excuse and without the agreement of the Father in breach of Order 2 of the Orders of 21 March 2017 for equal shared parental responsibility.

B.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

FAMILY VIOLENCE CROSS-EXAMINATION

C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

IT IS NOTED that publication of this judgment under the pseudonym Salton & Farraday is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 798 of 2011

MR SALTON

Applicant

And

MS FARRADAY

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a contravention application. There are four contraventions.  Count number 1, that on 25 October 2019, the mother refused to hand over the children for the father’s weekend time. The mother admitted the contravention and said she had a reasonable excuse. The contravention has continued from 25 October up to the father’s weekends. It was amended to include all of the current weekends that he has missed, up until today, which is Friday, 6 March 2020.

2. And there is a contravention about a haircut, which is really not something I have got a lot of time to do today and really, in the scheme of things it is not significant. 

3. The third contravention is the mother’s failure to deliver up the children for one half of the school holiday periods in Christmas 2019.  And the fourth very serious contravention is that in contravention of the equal shared parental responsibility order number 2, the mother has unenrolled the children from their City A school, re-enrolled the children in South Queensland without the agreement of the father and she has relocated the children’s place of residence from City A to the City B without agreement from the father.

4. Both of those, the mother says that she committed those contraventions and she has a reasonable excuse. In this matter, the relevant section of the Act setting out the meaning of contravening an order is found in section 70NAC (a)(i) and (ii). A person has contravened an order if the person has intentionally failed to comply with the order or made no reasonable attempt to comply.

5. Section 70NAD states that for the purposes of this division: There are requirements that are taken to be included when considering a parenting order, a parenting order that deals with whom a child is to live include the provision that people act in accordance with section 65M in relation to the order.  That is, a general obligation that you must not act contrary to the order.

6. Section 65M makes reference to a person not removing the child from the care of a person or refusing or failing to deliver or return the child to a person, and exercise any of the powers or duties or responsibility that a person has under the order.  Similarly, obligations apply in relation to an order that deals with whom a child communicates, as set out in section 65NA, and that refers to a person not hindering or preventing a person and the child communicating with each other in accordance with the order or interfering with the communication that a person and the child are supposed to have.

7. As to the meaning of a reasonable excuse, s. 70NA(1) and (2) sets out a person is taken to have a reasonable excuse if they contravene substantially because at the time they did not understand the obligations and the Court is satisfied the person ought to be excused.  In this matter I am quite satisfied the mother understood her obligations of the orders made some two years earlier, and also because December 2011 was the first application in this matter and there have been orders through 2012, ’13, ’14, ’15, ’16, ’17, and, in fact, the mother has been contravened before and placed on an Undertaking to comply with the orders.

8. Section 70NA(4) provides that in relation to an order which deals whom a child is to live, a person will have a reasonable excuse if the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health and safety of a person, being the respondent or the child, and that the contravention occurred for not longer than was necessary to protect the health and safety of the person or the child. Similar provisions are provided for under s.70NA(6) in relation to contravening an order with who a child is to communicate with.

9. The material of each of the parties I have read into the record.  I have permitted the mother to rely on more than one affidavit, because this actually, as I said at the outset, is a big story, which the mother has told over in various affidavits she filed in her own application in a case, in response to the father’s contravention. The mother asks in her application in a case filed on 4 November 2019 for therapeutic counselling and supervised contact for the father, and interim orders asking for specialist domestic violence counselling orders and the father to attend a Positive Parenting Program, and other matters.

10. The father is seeking for the parenting  orders which have been in place since 2017 to be complied with, and that the children be returned to live in City A and that his time resume, otherwise, that the children live with him if the mother is not going to return. He also seeks a recovery order issue for the return of the children. In terms of contraventions, the contraventions have been ongoing and sustained, as I said, from 25 October 2019, through to the current time March 2020. I think that is about 19 weekends or so, and in terms, then, of alternate weekends, that is going to be about 10, and one half of the six weeks at the Christmas 2019 school holiday period.

11. The mother has admitted the contraventions. 

12. Turning now to look at the reasonable excuses that the mother puts forth to justify her relocation of the children and changing of schools and having no time with the father. I have heard the mother’s evidence, I have read her affidavits and the mother has been asked questions. The process of doing contraventions is difficult for self-represented parties.  The father has asked questions. I have attempted to assist each of the parties to frame their questions at times, or indicate when they need to “put” something to the other side. 

13. At a point during the hearing, the mother was to give evidence of what she called Family Violence.  She said she could not do so with the father in the court room, and so the father co-operated very willingly, in moving to the next court room and asking his questions by phone between the Court rooms. Again where I could relay the questions I did so. I hasten to point out that since 20 December 2011, when this litigation started, these two parties have been in the courtroom together for years.  The file of many volumes is up to document number 79.  They have been in and out of the courtroom together for years.

14. Historically, they have had a domestic violence order against the other. They have expired. The mother has recently sought another domestic violence order.  On the first date that I mentioned this contravention by phone (the mother was no longer living in City A). The mother refused to say where she was living, said that there were police investigations and ongoing inquiries, and said that there was stalking, surveillance, family violence, serious family violence that caused her to not disclose her address, saying that DV Connect and domestic violence services had assisted her removal from City A, and that this was, as the mother said, and as I understood it, all because of the father’s domestic violence.

15. Today I have read all of the mother’s material and I have listened to the mother’s evidence. It is quite vast.  All of her excuses in relation to the contraventions – (I am not talking about the haircuts contravention today) are the same. The mother has the same response to each of the contraventions. The mother has set out in her material the specific details comprehensively in her affidavit of 3 March 2020. I will deal with the major issues as they have been told to the Court by the mother.

Reasonable Excuse

1. The evidence broadly is that the mother was concerned about happenings at her home and that those happenings are set out at various paragraphs in the mother’s affidavit. She has a partner called Mr C, and he works with Employer D. The mother describes that as the background that from the beginning of September 2019, that she noticed suspicious activities happening around her house.  She says it first started happening after the children came back from a three week vacation to Town E with their father. The father set out in his material that he and the children had a fun filled holiday together during the September school holiday period.

2. The mother described what “we” – (meaning she and Mr C) – “have witnessed.” The mother calls it stalking and surveillance by the applicant, being the father, and his “associates.”   The mother and her partner Mr C (who did not give any evidence) have witnessed, according to the mother, cars parking frequently across from their home at night, and turning their engines off, and the headlights off, and remaining in their cars and then leaving.

3. One night or day she said that Mr C told her that someone came and pulled up in their driveway in a Vehicle. Mr C, her boyfriend, told her that somebody put something in the letterbox. Mr C handed her a letter that had been delivered, and drew her attention to the fact that it was from Super Fund F. The mother suspected the letter had been steamed open, the letter being a Super Fund F statement. Mr C said that someone driving in a Vehicle, put something back in the letterbox. That was as told to her by her partner. This is in September 2019.

4. The mother, (who was not there at the time the letter was delivered or returned if it ever was returned) alleges that someone called Ms G was the driver of a Vehicle and that Ms G’s boyfriend put the mail back into her mailbox. The mother regards that as the stalking and surveillance. The mother said that when Mr C gave her the mail that it looked like it had been steamed and resealed. The mother thinks that there is some sort of conspiracy to do stalking and surveillance, including by this person, Ms G’s boyfriend.

5. When asked, the mother said that all her partner Mr C witnessed was that there was a lady in the car, and she was driving, and a man got out and put the mail in the box.  Her partner suspects that this was the person that did the steaming, as does the mother.  The mother’s suspicions are that these people were probably on instructions from the father. 

6. The story continues, then, that the one day Mr C decided (as he works in sales) to do a cold canvas call down in Town H. This was and after the person had been putting the letter in the letter box, and the cars had been parking opposite their house on some nights. The mother said that Mr C went down to Town H and that he decided that he was going to drop a business card in to the people that owned the Town H Store.

7. The mother said she and Mr C have decided that a series of events then occurred. The mother says that Mr C went down to Town H to deliver a brochure or business card of the business he works for and said to the person in the store named Ms J, “You used to be friends with my partner,” and then Mr C told them who his partner was being the mother (Ms Farraday) and the person said “yes.”  And so the mother has a theory and suspicion that this person at the Town H Store has somehow found out the details or taken the details of where Mr C’s work place is. 

8. The mother says she also thinks that on the Facebook page of the Store, that the words displayed which is Mr C’s work place are used. The mother also thinks that the person in the business, Ms K and her husband Mr L (that both the mother and father knew when they were married and lived in Town M years ago) – that the mother thinks or surmises that there has been a conversation between someone at the store, probably Ms K who has mentioned to someone that Mr C has come in to the store.  The mother then suspects that the father and the father’s wife Ms N have been in touch with the store, and that someone, probably Ms N the father’s wife, has organised for someone unknown persons to start pulling up in their cars outside the business Employer D, where Mr C works.

9. Mr C told the mother that there were cars pulling up outside his place of work, and he was worried about them. The mother said she became very concerned and apparently Mr C did as well. They started to get frightened about cars that were pulling up in the public street outside the business of Employer D during business hours. The mother said she and the mother took time off work as domestic violence leave for three days to stand on the footpath outside of the commercial premises where Mr C works, and for three days she watched cars that pulled in to the turning circle near Employer D. The mother says that the drivers stayed in their cars for a little moment and sometimes they were on their mobile phones and then they pulled away.

10. The mother regards this as highly suspicious and she said sometimes they were glaring at Mr C.  It was never explained to me how they would be glaring at him if he was inside his work building, but I think the mother explains that Mr C must have been standing outside as well. So that is the first piece of evidence that the mother gives as to the basis of what she refers to the father engaging in stalking behaviour.

1. The mother says that Ms K still remains friends with the father’s wife Ms N and the assumption is that in respect of the Facebook page for Town H Store, someone has looked on there and the assumption is that Ms K has told someone, probably Ms N about the equipment.  Then two weeks after that is when the mother says that Mr C first started noticing cars pulling up.  All of this commentary by the mother is hearsay from Mr C.  As I have said, He has not filed an affidavit. There is no supporting evidence from him that someone was pulling up at the commercial premises where he works, near the deliveries area.

2. As to the number of cars the mother says two cars mostly a day, over a three-week period, and that she actually took off time from work to go and watch these cars, and she was so suspicious. One was a Motor Vehicle 1.  The mother gave the registration number plate to the police to look into it, and she thinks that one of the two cars that she has seen outside her partner’s work has been seen outside her home.  When asked, she said she did not recognise anybody in the cars, adding that “I would say they are illegally tinted.” She said she has made a triple 0 call about the cars, and told about police link out the front. That is the mother’s evidence about that.

3. The other issues that have troubled the mother involve more of the cars pulling up outside the front. Effectively, the mother says that this situation kept going and that she and her partner were becoming more and more scared, to the point where on the weekend she contravened the Orders for the children to spend time with the father. When all of the ongoing contraventions started, the mother took the children to Town O with her partner for time out. This was because they could not sleep and they were very, very worried, and they did not feel safe in their homes, and so they went away for the weekend.

4. So the children were in City A area for the first Count being the first weekend the children did not see the father.  The children could have gone to the father’s that weekend. They were actually still in City A.  And, in fact, the mother and her partner they did not leave City A until 15 November 2019.  So there were other weekends when the children still did not see their father, but they were in City A.

5. The mother says that this situation of cars being out the front of the house built up to the point where one night the mother saw a lady outside the house.  The mother noticed that this lady was walking around next door talking on the phone.  The mother agreed she had her house for sale and that there was a “for sale” sign on the mother’s house. The mother continued to describe the person someone walking around next door, looking at the mother’s house whilst using a phone.  This was after work sometime. The mother said she got so concerned at this person wandering around, that she watched for a long time. The mother was asked if this was likely a potential buyer, who was looking at her house from the block next door. 

6. The mother said it could have been, but something very suspicious then happened. The mother had a phone call from the agent to say someone had been out to look at the house (which has got the “for sale” sign out the front).  The mother said that the first thing that she wanted to know was did the mother’s jacuzzi on her balcony or in her house make a big noise. The mother considered that this was so strange, so very strange that the mother was deeply disturbed about it. The mother said that for her it was the final straw. The mother says that she “rang DV Connect to get advice and discussed concerns.” The mother says that she and her partner and the children then fled from their homes.

7. The mother said that she was unsafe and it was not safe to reside in the house and that she was offered a safe house for the children. The mother set out in her material that she was anxious and scared about leaving without her partner Mr C. The mother said she was very worried that one of the father’s alleged associates might notice her leave the home with the children. So on the 15 November 2019, she says, “We had no option but to leave,” and they had not felt safe for weeks and that they were living in fear. They had not slept for weeks and they felt anxious, and they could not carry on living this way.

8. The mother said that she contacted the police and the police had organised hourly rounding at night, because of obviously what the mother had told the police and she says that they had to leave.  They only took the essentials and ultimately they had to get friends to help pack up their home. They did not just leave the house, or City A, or the City A district, they actually relocated to Brisbane and thereafter to the City B. They now live on the City B.

9. An extraordinary coincidence in this matter is that probably for two years now the mother has been wanting to relocate to the City B and the father has not been agreeable to the children leaving City A. All of the text messages in the material that I have read and exchanges mostly deal with the mother asking the father over and over if he will agree to let her relocate the children to the City B. The mother said she is very respectful of the orders, but that she has gone nonetheless for the reasons explained.

10. The mother also says that she left after family violence. This is the point that the mother started crying and said she could not give her evidence with the father in the room. The mother asked that the father be placed in another room. This was accommodated by the Court and the father.  Having heard the evidence, it is significant, that the allegations do not involve any violence between the mother and father. Point 2, the mother’s evidence is at that the children have told her a very long story on two different occasions with almost the same incidents happening.  When the mother told the story first about young P (the father’s child with his wife Ms N) he was supposed to be 18 months old.

11. The mother told the Court a very long story, about what all three children had told her. The mother explained how she had picked the children up from their father’s and she had asked them had they had a lovely time with the father, and they had said, “No, we did not,” and then she asked them what happened, and then the children said, “No, Mum. It was horrible.”  By coincidence, they said that on each of the two occasions involved.  The mother said the children all burst into tears and said, “We never want to see Dad anymore.”  This was back in July 2018. 

12. The mother repeated a long story that the children told her. “When Dad was not with us and Ms N was not home,” that P had donked one of the children on the head with a plastic toy hammer and that the father had grabbed P with his wrist and elevated him and lifted him up off the ground. This was being told by all three children. He is 18 months old and his legs were dangling on the ground and he smacked P on the bottom a couple of times and then he dropped him down and then cushions were thrown at P, causing P to fall over on the timber floor.  And then the father picked him up again with his legs dangling, and so it went on.

13. And the story continued that when P fell over P looked up and he had a sad look on his face and he was scared of Daddy, and the children said they did not know what to do. P came up to the children the same weekend and the children said that he was really concerned and that he had apologised, and so the story went on.  Later in the evidence, the mother said that all of this was set out in the notice of risk.

14. In the notice of risk, it was set out that the father had been kicking P in the back of the legs which the mother did not refer to. The mother thanked the Court and said, that is right that she had forgotten about that.  The second incident is much the same. The children had a holiday up at Town E with their father in September 2019. The mother said the kids returned.  The mother said, “I hope you had a lovely time,” and they said, “No, we did not, Mummy.  We had a horrible time.”  And then the mother explains that she was told by all three children that young P hit Z with a plastic toy on the head and that the girls went on to say that the father picked up P and elevated him, and he was dangling just exactly as the time before. 

15. And then he got smacked and then he was dropped and P started to run and the father ran after him and placed his open hand on his back and the children said he looked very angry and did it with force and anger.  And he pushed so that P landed on the timber flooring in the office, and that P got up and ran into the toilet, and the father was in anger and rage when he put P in the toilet, and then P managed to open the door and he ran out, back into the office and his lip was sore and he told X that his lip was sore.

16. And he said, “X picked me up and then she said she could see saliva,” and –– bleeding, and came out into the bathroom and she rinsed his mouth, and he said, “Sorry. I am sorry I hit you, X.”  And P has said “sorry.”  The mother’s evidence continued that the children told her that when the father got home that he was on the couch and he eventually said he was hurt, or words to that effect, and the father said “Shut up.  You are lying.”

17. I have listened very intently to all of the mother’s evidence. I have clarified what she has said from time to time to make sure I fully understood the specifics. 

18. I have also listened to the father’s evidence and he has given me his version of events.  Starting with the events allegedly involving his own little son P, he has explained that first incident was effectively that P was about to hit another child on the head with something, a toy, and the father threw a soft toy to stop him throwing it. Nothing else happened. The second is that after they had been on the holiday in September 2019 with all of the children, during which time said they all had a terrific time that he was washing off his car on their return. They went back to the workplace and that he effectively fell backwards over P.

19. He was taking off the bush barriers off the vehicle.  He had unloaded the camper trailer.  They were putting all the things away.  They were having alterations done to their home, so they were staying in a cabin at Town Q.  They ducked into work.  He stepped backwards, tripped over P on his bike. P fell on the ground and so did the father.  There is another person that saw it and that that is what happened, and they both ended up on the floor. His partner was not there. She had gone away to get bread rolls for lunch, and that the other worker Mr R was there. 

20. The father denies any knowledge of cars parked outside the mother’s house.  He denies any knowledge of cars pulling into the drive in section outside the work place of the mothers’ partner.  He knows nothing about this at all and he has not organised this to occur through the former friend of he and the mother, who runs the Town H store.

21. Having listened to both of the versions of events, I am satisfied that the father is telling the truth.  He gave his evidence openly and honestly. I found him to be extremely accurate and historical.  He is not hysterical.  He is not delusional and there is nothing that he said that I found to be untruthful. 

22. The evidence of the mother, as I said, worries me in many respects. Not because I accept that the father has any part in any alleged cars being out the front of the mother’s home or her partner’s work place.  Rather is very clear to me that the mother has an extremely high level of suspicion to the point that what she is saying in her evidence is almost delusional.  The mother and her partner have painted a picture that they are so frightened of someone parking out the front of the mother’s home, across the road and that they have had to leave abruptly, with all the children and relocate 2000 kilometres away. 

23. I do not accept that anything the mother has told me about all of her suspicions, and her evidence is nothing more than suspicions, is, in fact, true. I am left wondering if the mother is suffering some delusion. The mother is anxious, I am aware of that.  Having held the children over for 5 months could play a part in that. The mother’s evidence is just a drawing together a string of events to reach a conclusion that the father and his partner are organising drivers in cars to park out the front of the commercial premises where Mr C works, and possibly the mother’s home. That the mother’s partner would decide to go to Town H in the first place (a round trip of 280 kilometres), only to make a cold canvass call to try and sell products, and happens to leave a business card and then to assume that the person in the store contacted the father and his wife, and then the father and the wife are accused of engaging associates to drive cars around parking outside the mother’s home at night, or her partner’s work place is utterly without merit. It is untrue and fanciful.

24. But I am deeply disturbed at the mother’s use of false and accusatory language. She is adopting the language, saying things like stalking, surveillance, fleeing the house but the language does not match the substratum of facts provided by the mother. During this hearing, the mother objected to the father reading the police records. The mother’s objection was on the basis that there would be some information in the material that would identify where she is living. There is not.  And, that there are ongoing investigations by the police and that they would all be confidential. There was no reference to the mother’s residence. I overruled that objection.

25. The material shows that when the mother has contacted the police back in 2018. The mother is shown as the aggrieved in this matter is Ms Farraday. The respondent is Mr Salton. The records show that the aggrieved and the respondent were both previously married however, they are now divorced.  The father has remarried and the mother is engaged. On 8 November 2018, the mother came into the counter so police could take out a DV application naming herself as the aggrieved and her partner as the respondent. 

26. The records show that the mother said she is wanting a domestic violence order for protection because of a number of emails that she has received from her ex-husband’s account. However, she believes that her ex-husband’s partner was really the person sending the emails.  The Police records note, “some of the emails that the aggrieved was able to produce were predominantly about the children’s sporting activities and who would fund them, and there was some petty content in the emails; however, nothing of a malicious, threatening or violent account.” 

27. I can see in the affidavit of the father’s partner Ms N that the mother has tried to take out a DV order against her. The police records also show the mother making accusations but not being able to produce evidence to support her accusations. It is recorded that the aggrieved could not produce these emails. The mother stated that in another email, her husband had called the children liars and said that he would put her and the children in jail. The mother could not produce the emails. The records note that there was no elaboration from the respondent on how he was going to do this or what he was going to do. “Police believe there is insufficient evidence of any act of domestic violence occurring.  The aggrieved is currently undergoing custody arguments with the respondent and wishes to get extra conditions on the children’s time with the respondent. Police do not believe the aggrieved is in need of protection. The lack of evidence provided by the aggrieved indicates there is probably no DV occurrence.” 

28. After this, the mother has decided to proceed with her own private domestic violence application.  The matter was listed in the Magistrates Court.  Further appearances later, after being given time to produce evidence, her applications were dismissed. 

29. The mother said to me in this Court, that her application was dismissed because it was someone else’s child.  I do not accept that.  Her application was dismissed for lack of evidence. If the best that the mother could come up with was a version of her own children being exposed to a child throwing using a plastic toy to hit another one of them, and then the father throwing a soft toy at his own child, I am not surprised that they were dismissed. 

30. The mother says in her affidavit that she isn’t trying to say that the father was being violent or abusing his son.  The mother said, “I am not saying that, he is saying that.” At the time of making these complaints to the police, the mother was still talking to the father about wanting to relocate the children. The mother said to the father repeatedly, that the children could come back and “spend all of the holiday time with him.” The mother asked over and over why the father would not agree to her relocating to the City B, as seen in the voluminous emails and texts between the parties in their respective affidavits. The mother keeps asking him why he won’t agree.

31. The mother said repeatedly in Court that she was not accusing the father of child abuse and that it is the father is saying that, but that she was not. I am satisfied that the mother is accusing the father of child abuse. The mother has reported incidents involving him throwing a soft toy to the Police. The mother has reported the father to the Department of Child Safety. The mother has tried to use that information to have a domestic violence order issued against the father and failed. The mother has applications in this Court now as set out in an application in a case, for the father to have supervised contact, domestic violence counselling, individual representation of the children, family reports and so forth. She is using the language of a domestic violence victim, but I am quite satisfied that there is no domestic violence caused by the father, in relation to any issue. Likewise there is no evidence to support any family violence/domestic violence caused to the mother by the father’s wife Ms N.

32. Like the police have observed, the mothers’ complaints are made in the context of her ongoing issues with the father, namely his refusal to agree her to relocate their three children away from City A to the City B.   All of these allegations with the mother going to the Police and the Magistrates Court are all made all just prior to the mother and her partner leaving City A and relocating to the City B.

33. As to the mother’s reasonable excuse, there was, in my view, no risk to the children’s health and safety. The mother says that they were very frightened and that they looked out and saw a car from time to time, and that they were too frightened to sleep as well, and they got to the point where they did not want to go to school. I do not accept the mother’s evidence. If the mother had any problems with cars parking near her home, the solution was not to relocate herself her partner and the children to the City B.

34. As to her suggestions that the children said they did not want to see their father any more, I accept the father’s evidence that the children had a marvellous holiday camping away with the father and his family, and their young half-brother. Wherever the mother and father’s evidence is in contest, in the absence of any independent evidence, I prefer the evidence of the father.  As I said, the mother’s version of events amounts to a narrative and fabric of commentary, innuendo, suspicion, opinion.  At times it was bordering on hysterical. It is certainly delusional. The mother said later in her evidence, that her partner had managed to secure a transfer to Brisbane or the City B with his work.  The mother said she was too was looking for work and she had interviews lined up the following week.

35. If the mother and her partner are being followed or  there are cars parking out the front of her house - and she tells me that it is happening again on the City B – if that is happening (and I not satisfied that it is) that has nothing to do with this father and his wife Ms N. Based upon the evidence I have before me, there is no evidence of any involvement by the father or his partner in any of the real or imagined events occurring to the mother and her partner.

1. I note the constant theme of the mother coming back to the father’s partner Ms N. The mother said that Ms N must have made the calls, she must have organised people, or referring to Ms N for writing emails (as alleged in the mother’s material) and reporting Ms N to the police for writing emails the mother could never produce. This theme has continued for years. It is bordering on an obsessive rumination by the mother that has gone on for years. It is throughout her material. The mother has referred to the father making threats to her. That amounts to the father writing to the mother to say if you do not do what the orders say, I am going to breach you. I do not regard that as a “threat” constituting family violence.

2. The mother refers in her material to a recovery order with the Court and the children being returned some years ago in 2013. There was never a recovery order issued. There were orders made for equal shared parental responsibility, and after the father had had the children for some 11 days or so, the orders were made for the father to resume his two out of three weekends.

3. I am very troubled about what the mother has been saying to the children over these past five months and prior to their removal from City A.  This mother said today with much emotion she could not give this evidence as to her allegations of family violence in the presence of the father.  There is no family violence committed by the father upon the mother.  There is no evidence that the children have been exposed to family violence. I am not satisfied that children are being told or have been told about the incidents that the mother is portraying as family violence against the father. Unfortunately, I do not have any great confidence that what the mother says the children say, is in fact said or that it is not added to and distorted by the mother. The mother’s repetitive evidence as to what the children said was entirely unconvincing.  

4. The mother has agreed with the father’s suggestion that he has written to her over the last two years to try and get her to understand and address the issue of the children saying things about the other parent to each parent. He had told the mother and she has agreed that at times  they both realise that the children are saying whatever the parents wanted to hear.  And it would be very convenient for the children to be saying things now to somehow justify the mother relocating the children in the light of an order that says they live with the mother and spend each alternate weekend with the father and/or special days. 

5. It would be convenient to say that they are saying things like that because the mother wanted to relocate and has done for at least two years with her new partner, and it would be convenient to say those things to fit with what is a very blatant disregard and lack of respect for the Court’s orders in terms of  the children spending regular time with their father as set out in the Orders in place since 2017, ( and since 2011) the children living and going to school in City A and spending half the holidays with their father.

6. The mother is not here in Court today saying, nor has she ever come to Court to say, “I need to relocate.” She is here in relation to a contravention of Orders, an ongoing contravention for five months. I am satisfied that the mother acted first and foremost in keeping with her desire to relocate the children to the City B. I do not accept she acted out of fear of anything that the father or his wife have been involved in.   In terms of the mother’s reasonable excuse for contravening the Orders, as set out in the various Counts, I am not satisfied that there is a reasonable excuse for the mother to contravene the Order for the children to spend time with the father on alternate weekends and half the holidays, or to breach the order for equal shared parental responsibility to make joint decisions about where the children live and where they are educated.  

7. There are plenty of opportunities if the mother was frightened about something to come to Court and explain her situation and what she proposed for the future of the children. The mother has not ever filed an application to relocate. It was all done behind the father’s back without consultation or agreement. The mother was prepared to interrupt and unilaterally change the children’s lives in City A and their schooling. I cannot accept that there is any justification for acting so erratically. The response of relocating 2000 kilometres was utterly uncalled for. If the mother did feel that someone had opened her letter containing her Super Fund F statement or was parking out the front of her partners’ work place, I would suggest she look a little closer to home. The person who told her that something happened to the mail was her partner. I do not know what history he has, but the mother’s response to her suspicions is so grossly over the top. Her justification consists of suspicions and more suspicions and drawing threads of suspicions together.

8. During the mother’s evidence I had to tell the mother that the Court could not sit and listen to all of the theories that the mother has about who has spoken to who as the mother has a tendency to draw deeply on other suspicions. The mother has many other theories which have no factual basis, which she seems to be operating under.  

9. The mother says that there is some issue she wants to follow through again (in something of an obsessional fashion) to find out, and she has issued subpoenas to find out who was the process server that they were referring to and who delivered the letter, and she did not get it and who took the photograph that the process server had of the house for sale, which is on the public internet realestate.com against whom the mother has issued a subpoena, to find out who first brought that to the father’s attention.

10. All of that is a complete distraction, but it fits squarely with the mother’s very concerning presentation and suspicions. I am deeply disturbed about these children being in the care and responsibility of the mother and her partner. Each of them are, on the evidence before me, overreacting. I have the impression that there is a vastly different background to the mother’s plans to leave City A, than is currently before the Court. I am troubled at the  manner in which the mother is portraying herself to DV Connect and Police creating many red herrings along the way, and insisting that she is  a victim of such serious domestic violence, stalking, and threat such that that she has to ‘flee her home.’  There is just no evidence to support these claims.  

11. All the time that she has been away from City A, the mother has been trying to do deals with the father, as she was before she left.  All of the deals that she has tried to do with the father about relocating include the children coming back to him and spending all of the holidays with him or half of the holidays. The mother is thriving on suspicion, she uses what the children have allegedly told her to justify her suspicions.

12. I am satisfied that there is no reasonable excuse in relation to count number 1. That is a prolonged and continuing breach, and is a very serious breach. Counts number 3 and 4 are equally serious. The last time the mother was at Court, I said to her and reminded her back in February 2020 that there are orders in place for equal shared parental responsibility, and she tried to tell me that she had not interfered with the schooling.  The mother said it is just that the schooling, we are doing their schooling from home, and her home is now on the City B.   This explanation to the Court was disingenuous. They left town in November 2019. It is now March 2020.  The father has not seen them at all since the holiday in September 2019. If ever there was any happenings  that the mother was concerned about with her partner Mr C, there was absolutely no need to keep the children from their father at all, or for any period of time, and certainly not for the rest of November, all of December, all of January, all of February and March. So in relation to counts 3 and 4, I am satisfied that there is no reasonable excuse. 

13. In terms of the seriousness or otherwise, I am aware that the mother has already been found to be in breach of orders.  At that time in 2017 the mother had contravened an order without a reasonable excuse. The mother entered into a bond to be of good behaviour for 12 months to comply with the order, and that 12 months has expired in 2018.  

14. So this is not the first contravention. In looking at whether this is a serious contravention, I am satisfied that the length of time the contravention has continued, the distance relocated, the decision to not even allow the children to have contact of any time at all, and  the up and leaving in the face of orders is acting in serious disregard of orders. The mother is an intelligent woman who holds down a responsible position as a health care worker.

15. She says that it is all getting to her, and that she has been on long service leave, and that is coming to an end, and she does not know what is going to happen after April.  I am strongly of the view that much of the reason that the mother is as anxious as she is at the moment is because she knows that she is in breach of orders and she has acted so erratically.   She is an experienced litigant, having been in litigation with the father since around 2011, some 9 years.

16. The mother is always very respectful and she is an intelligent woman and I am sure she is a good health care worker. That does not excuse this appalling behaviour and flouting of the Court’s orders, particularly to the extent that she has in done so. There is no evidence to substantiate that she was at any risk or that the children were at any risk. 

17. If there were cars parking out the front, other steps could have been taken that did not need to involve the children changing schools, the children relocating from City A about 2000 kilometres with her partner, The emotive language used about family violence, stalking – it is inaccurate and self-serving. And then turning it around to somehow say that the children were exposed to family violence on the actions of an 18-month old child with the father throwing a soft toy at him or falling over on his bike is absurd.

18. In terms of the seriousness of the offences, I am regarding these as being in serious disregard of orders. I cannot think of anything that the mother could have done more blatantly than relocate, like she had always wanted to, notwithstanding the orders of the Court. The mother has taken  up all considerable time with her suspicions and innuendo, meanwhile  stopping the children from seeing their father for five months, and changing schools and changing their place of residence from City A to South East Queensland. 

19. I am satisfied certainly beyond reasonable doubt that the contraventions occurred (they are admitted) I am satisfied beyond reasonable doubt  the explanations are utterly without merit, and that the mother has contravened the orders knowing precisely what they mean, and done so with complete disregard to the Court’s authority. 

20. In terms of subdivision F of division 38, which deals with contraventions without a reasonable excuse for more serious contraventions, I am satisfied that these are serious contraventions. Section  70NFB(2) sets out the orders that a court can make include ranging from the mother serving community service, the mother entering into a bond, including an order providing for makeup time missed by the other parent, a fine, a sentence of imprisonment, a sentence of suspended imprisonment and an order for costs.

21. I intend to hear applications about the sanctions that are being sought.  I know that the first thing the father asks for is that the children be returned to City A. I am satisfied that the children should be returned without delay, and I am satisfied also that they should be returned to their schools, and that the orders need to be complied with. 

22. If the mother wishes to bring an application to relocate, that is at her discretion. I intend to make orders putting the children back into the position they were in, living with the mother in City A and spending time with the father. In the event that the mother chooses to relocate without the children, I am satisfied that children should live with the father, until the mother returns. The father has the capacity to do so, he has spent considerable time with the children over many years and for weeks on end. It is the mother’s choice if she wishes to leave the children and relocate without them. That is her decision.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Willis AM

Date:  3 March 2020