Sitch and Jacobs (No.3)

Case [2014] FCCA 1865

FEDERAL CIRCUIT COURT OF AUSTRALIA

SITCH & JACOBS (No.3) [2014] FCCA 1865
Catchwords:
FAMILY LAW – Contravention application by Father – two contraventions alleged – whether first contravention made out – second contravention admitted – whether Mother had a reasonable excuse – basis for reasonable excuse – whether necessary to protect the health or safety of a person – series of emails sent to the judge and others by Father’s current partner.

PRACTICE AND PROCEDURE – Bias – whether recusal for apprehended bias appropriate where scandalous allegations made by non-party.

Legislation:

Education and Training Reform Act 2006 (Victoria)

Evidence Act 1995 (Cth), ss.140(2), 144(1)(a)

Family Law Act 1975 (Cth), ss.60CC, 70NAC, 70NAD, 70NAE, 70NAF, 70NBA, 121(1)

Federal Circuit Court Rules 2001 (Cth), rr.16.05(2)(a), 25B.04

Bahonko, in the matter of Bahonko [2013] FCA 683
Bahonko v Nurses Board of Victoria [2008] FCAFC 29

Clair & Gall [2011] FMCAfam 294

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Hall & Hall (1979) 5 Fam LR 609
Jets & Maker[2010] FamCAFC 55

Johnson v Johnson (2000) 201 CLR; [2000] HCA 48
Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42; [2010] FCA 413
Langer & Griffin [2013] FamCAFC 170

Redmond & Redmond & Ors [2013] FamCAFC 161
Sitch & Jacobs [2014] FCCA 419
Sitch & Jacobs (No.2) [2014] FCCA 1537

Stamp & Stamp [2014] FCCA 1269
Victorian Women Lawyers’ Association Inc v Federal Commissioner of Taxation (2008) 170 FCR 318; [2008] FCA 983
Zaghloul v Woodside Energy Limited [2014] FCA 306
Applicant: MS SITCH
Respondent: MR JACOBS
File Number: MLC 10230 of 2009
Judgment of: Judge Antoni Lucev
Hearing dates: 21 and 24 July 2014
Date of Last Submission: 24 July 2014
Delivered at: Melbourne (by telephone)
Delivered on: 22 August 2014

REPRESENTATION

For the Applicant: In person
For the Respondent: In person

ORDERS

  1. That the Application – Contravention filed by the Respondent on 8 July 2014 be dismissed.

  2. There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Sitch & Jacobs (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10230 of 2009

MS SITCH

Applicant

And

MR JACOBS

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an Application – Contravention filed by the respondent Father, Mr Jacobs, on 8 July 2014, which alleges two contraventions by the Mother, Ms Sitch, of final parenting orders made by the Court on 7 March 2014 in respect of the Child, [X], born [omitted] 2004: see Sitch & Jacobs [2014] FCCA 419 (“Sitch (No.1)”).

The alleged contraventions

  1. Two contraventions are alleged.

  2. The first contravention is alleged to have occurred at 4.00pm on Wednesday 12 March 2014, and alleges a failure by the Mother to meet the Father at the place of changeover specified in order (9) of the Court’s orders of 7 March 2014, that being outside the front entrance of the…

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Details
AGLC
Sitch and Jacobs (No.3) [2014] FCCA 1865
Case
[2014] FCCA 1865
Decision Date

CaseChat Overview and Summary

In Sitch and Jacobs (No.3), heard before Judge Antoni Lucev, the dispute concerned an application filed by the Respondent on 8 July 2014 alleging contravention. The application arose from an email sent by the Father's Current Partner to the Mother, which was also copied to the Judge's Associate and the Independent Children's Lawyer. This email contained contentious remarks regarding the Mother's mental health and the conduct of the Father.

The primary legal issue before the Court was whether the conduct of the Father, as evidenced by the email and other surrounding circumstances, constituted a contravention of court orders. Specifically, the Court was required to determine if the Father had improperly disclosed information about the Mother's mental health to the child and if his actions in relation to an ano-genital examination of the child were in contravention of court orders. The Court also considered the relevance and admissibility of evidence concerning the Mother's mental health history.

The Court reasoned that the email, while containing inflammatory language, did not establish a contravention of court orders. It noted that the Mother's mental health had been a subject of previous court consideration and that concerns had been raised by various agencies. However, the Court found that the Father's actions in disclosing excerpts from a Family Report to the child were indicative of his attempt to influence the child's position. Regarding the ano-genital examination, the Court clarified that its previous reference was to the normal results of the examination, not to the examination procedure itself. The Court also took judicial notice of the public knowledge surrounding the death of Chris Mainwaring, a former AFL footballer, to contextualise a remark made in the email.

The Court ordered that the Application – Contravention filed by the Respondent on 8 July 2014 be dismissed. There were no orders as to costs.

Orders

Orders of the court

1.

That the Application – Contravention filed by the Respondent on 8 July 2014 be dismissed.

2.

There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

At 2.56am on 4 July 2014 the Father’s Current Partner forwarded to the Mother an email headed “MOTHER’S MENTAL HEALTH MLC 10230/2009” and copied to the Judge’s Associate generic email address, the Judge’s Associate personal work email address and the ICL. The text of the email reads as follows:Lucev I have attached the evidence that [the Mother’s] mental health was questioned and this doesn’t include the evidence you are atte[…]The Father sought to raise at the hearing issues associated with the Mother’s mental health. It is admitted that the Mother had a menta[…] since that time although the Father seeks to draw a line between the conduct of the Mother in 2012 and her earlier mental health issue. […] time of the incidents the subject of this application from about June 2012 onwards.DHS, police and the RCH Social Workers expressed concerns about [the Mother’s] Mental Health. So clearly it wasn’t just the father […]Where’s your head at? The way your going you’ll join Chris Mainwaring.You stuffed this uo to:b. an ano-genital examination of the Child was entirely normal;You totally fucked up the context here, she meant the results were normal not that sticking cameras where they shouldn’t go was norm[…]It is of concern that certain excerpts from the Family Report were disclosed to the Child by the Father. That is indicative of the Father n[…] position by reference to what was said by the Family Report writer.Where is [the Mother’s] evidence that [the Father] let the cat out of the bag? There is not a single statement that [the Mother] made of any wo[…] unlike everything [the Father] said, oh but that’s right you are trying to hide that EVIDENCE.You arrogant fool, the only evidence of any value was provided to you by [the Father] or his Proteges. I would suggest it would be wise for y[…] Evidence not just [first name omitted] “I lick” [Ms P]’s thorough report.You make me sick.Think of a camera up a child’s bottom, hopefully that will make you feel better.Yes [Mother’s first name] does that help? The Court has dealt with the issue of the evidence and its conclusions with respect to the psychiatric assessment of the Mother above at paragraph 69. It is notorious, and sufficiently so that the Court can take it as being common knowledge under s.144(1)(a) of the Evidence Act: Victorian Women Lawyers’ Association Inc v Federal Commissioner of Taxation (2008) 170 FCR 318 at 325 per French J; [2008] FCA 983 at para.16 per French J, that Mr Mainwaring was an AFL footballer with the West Coast Eagles, who some years after his playing career ended, died at a relatively young age in circumstances which remain publicly unexplained. As to the ano-genital examination of the Child and the assertion that the Court erred in its reference to that examination, a plain reading of Sitch (No.1) at paragraph 10(b) in its proper context indicates that the Court was referring to the results of the examination, expressed in Dr S’s “opinion”: Sitch (No.1) at paragraph 10, that the examination was “normal”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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