Sitch and Jacobs (No.3)
[2014] FCCA 1865
•22 August 2014
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 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 Johnson v Johnson (2000) 201 CLR; [2000] HCA 48 Redmond & Redmond & Ors [2013] FamCAFC 161 Stamp & Stamp [2014] FCCA 1269 |
| 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
That the Application – Contravention filed by the Respondent on 8 July 2014 be dismissed.
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
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
Two contraventions are alleged.
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 [omitted] (“Place of Changeover”) so as to allow the Child to spend time with the Father on the Wednesday evening of 12 March 2014 until the commencement of school on Thursday 13 March 2014 in accordance with order (3)(b) of the Court’s orders of 7 March 2014 (“Alleged First Contravention”).
The second contravention is alleged to have occurred at 5.00pm on 5 July 2014 and alleges a failure by the Mother to attend the place of changeover specified in order (9) of the Court’s orders of 7 March 2014 so as to allow the Child to spend one half of the school holidays with the Father, and a withholding of subsequent communication (“Alleged Second Contravention”).
Litigation history
Because of the nature of the evidence in these proceedings it is necessary to set out a summary of the litigation history at the outset.
On 28 and 29 August 2013 and 26, 27 and 30 September 2013 the Court heard contending applications for orders by the Mother and the Father in relation to parental responsibility, with whom the Child was to live, time to be spent with the Child and other matters. On 7 March 2014 final orders were made providing for:
a)equal shared parental responsibility;
b)the Child to live with the Mother;
c)the Child to spend time with the Father each alternate weekend from Friday at the conclusion of school until the following Monday at the commencement of school, and on each Wednesday from the conclusion of school until the commencement of school on Thursday: order (3)(a) and (b) of the 7 March 2014 orders; and
d)other usual ancillary orders, and the filing of written submissions on costs if sought by either party.
See generally Sitch (No.1) at paragraphs 91-92.
Relevantly, order (3) of the 7 March 2014 orders provided as follows:
(3) That the Child spend time with and communicate with his Father as follows:
(a) on each alternate weekend from Friday at the conclusion of school until the following Monday at the commencement of school;
(b) on each Wednesday from the conclusion of school until the commencement of school on Thursday;
(c) during school term holidays for one half as agreed, but failing agreement from school breakup until 5.00pm on the second Saturday of the holidays;
Following an issue raised by the parties (related to the Alleged First Contravention) order (3) was amended under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) on 17 March 2014 to read as follows:
(a) on each alternate weekend from Friday 45 minutes after the conclusion of school until the following Monday 45 minutes before the commencement of school;
(b) on each Wednesday 45 minutes after the conclusion of school until 45 minutes before the commencement of school on Thursday;
It will be necessary later in these Reasons for Judgment to return to the circumstances in which it was necessary to amend order (3)(a) and (b) of the 7 March 2014 orders, as they are particularly relevant to the Alleged First Contravention.
Order (9) of the 7 March 2014 orders has remained unchanged at all material times and is in the following terms:
(9) Except where otherwise specified in these orders, changeover shall be at the [omitted], outside of the front entrance.
The Mother filed submissions with respect to costs, and following some interlocutory skirmishes concerning the filing of further submissions by the Father, the issue of costs was heard by the Court on 8 May 2014, and the judgment on costs was delivered on 21 July 2014: Sitch v Jacobs (No.2) [2014] FCCA 1537 (“Sitch (No.2)”). The Court ordered that the Father pay the Mother’s costs thrown away of 29 August 2013 in the sum of $1384 by 21 October 2014. The costs thrown away were in relation to the listed second day of hearing on 29 August 2013 which had to be adjourned (the matter originally having been listed by Judge Burchardt for a two day hearing), which hearing was adjourned following the Father dispensing with the services of both his Counsel and solicitors after the first day of the hearing. In Sitch (No.2) at paragraph 47 the Court observed that:
47. Having considered all of the factors under s.117(2A) of the FL Act as set out above, but in particular having regard to the issues of legal aid assistance and the conduct of the proceedings by the Father in relation to the second day of hearing listed for 29 August 2013, the Court, in the exercise of the broad discretion vested in it by s.117(2) and (2A) of the FL Act, considers that the circumstances justify the making of a costs order against the Father for the costs thrown away by the Mother on 29 August 2013. Therefore, costs in the sum of $1384 will be ordered to be paid by the Father (the respondent) to the Mother (the applicant) by 21 October 2014.
The law and procedure
The meaning of “contravened” is defined in s.70NAC of the FL Act as follows:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
Sections 70NAD, 70NAE, 70NAF and 70NBA of the Family Law Act 1975 (Cth) (“FL Act”) provide as follows:
SECTION 70NAD
For the purposes of this Division:
(a) a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and
(b) a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and
(c) a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and
(d) a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.
SECTION 70NAE
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4) …
(5) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
SECTION 70NAF
(1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2) Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
(3) …
SECTION 70NBA
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
(2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;
(b) there was no post-separation parenting program that the person who contravened the primary order could attend;
(c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post-separation parenting program, or a part of such a program;
(d) the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
The Applicant bears the onus of proving the contravention on the balance of probabilities: Jets & Maker[2010] FamCAFC 55.
Section 140 of the Evidence Act 1995 (Cth) (“Evidence Act”) refers to the standard of proof. It provides for the Court to take into account the nature of the proceedings in determining whether it is satisfied to the requisite standard. Section 140(2) of the Evidence Act says:
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In applying s.140(2) of the Evidence Act, the Court must bear in mind the seriousness of contraventions of parenting orders, and the penalties that may be ultimately imposed: Langer & Griffin [2013] FamCAFC 170 at paragraph 60 per Bryant CJ, Strickland and Ainslie-Wallace JJ; Stamp & Stamp [2014] FCCA 1269 at paragraph 16 per Judge Riethmuller.
Rule 25B.04 of the FCC Rules provides that:
At the hearing of the application, the court must:
(a) inform the respondent of the allegation;
(b) ask the respondent whether the respondent wishes to admit or deny the allegation;
(c) hear any evidence supporting the allegation;
(d) ask the respondent to state the response to the allegation;
(e) hear any evidence for the respondent; and
(f) determine the proceeding.
The above procedure was explained to the parties at the hearing on 21 July 2014 before that hearing was adjourned to allow the Mother to obtain further legal advice. The procedure was reiterated when the proceedings recommenced on 24 July 2014.
Material relied upon at the hearing on of the Application – Contravention
The Father relied upon:
a)the Father’s affidavit sworn 8 July 2014 (“Father’s Affidavit”);
b)a series of text messages to the Mother in July 2014, and a letter dated 14 July 2014 which were contained in Exhibit 4; and
c)his oral evidence given on 24 July 2014.
The Mother relied upon:
a)her oral evidence given on 24 July 2014; and
b)three exhibits, being:
i)Exhibit 1 comprising emails sent to the Mother, primarily by the Father’s Current Partner;
ii)Exhibit 2, being an extract from the Father’s Current Partner’s Facebook page containing an entry concerning a family violence intervention order in respect of which costs of $5,400 were obtained, and associated artwork showing that sum upon which sits a figure which, albeit stylised and reversed is a recognisable rendering of [artwork omitted]; and
iii)Exhibit 3, being an interim intervention order granted on 15 July 2014 at the Magistrates Court at [omitted] in respect of the Father’s Current Partner and her contact with the Mother, the Child and another child of the Mother.
The Alleged First Contravention
The Mother did not admit the Alleged First Contravention.
The Alleged First Contravention is said to have occurred at 4.00pm on 12 March 2014 at [omitted], and as stated in the Application – Contravention as follows:
According to Paragraph (3)(a) and (b) the mother was to meet me in [omitted] for changeover both after school and before school she refused to do so and failed to refer to paragraph (9) of the orders as instructed by the clerk of the court. For a more detailed description please refer to my attached affidavit.
Order 3(a) of the 7 March 2014 orders, referred to in the Application – Contravention, relates to time spent with the Father on alternate weekends, and is not relevant to a contravention alleged to have occurred on a Wednesday. The Alleged First Contravention is therefore an alleged contravention of order (3)(b) of the 7 March 2014 orders.
The Father’s Affidavit at paragraphs 9-14 says as follows:
9. On the 12th March 2014 I was due to pick [the Child] up from the changeover location as specified in Clause (9) of the Court Orders dated 7/3/2014.
10. As I was a little uncertain and concerned about breaching court orders I contacted Judge Lucev’s Chambers and requested that clauses 3(a) and (b) be clarified in regards to changeover location.
11. The emails between parties are annexured hereto and marked with the letters DJ1. It was recommended by …[presiding Judge’s Associate] that I refer to clause (9), this was also the view of the Independent Children’s Lawyer, Mark Finn, however it appears [the Mother] informed Mr Terry Weerappah her acting solicitor that she was not was not going to conform with the court orders, [the Mother] was adamant that I was required to collect and return [the Child] from [X] Primary School. Letters sent to myself and Mr Mark Finn are annexured hereto and marked with the letters DJ2. Both [Father’s Current Partner] and myself read the letters sent by Mr Terry Weerappah and found them to be threatening and abrasive.
12. By approximately 3.00pm having spoken to [Father’s Current Partner], we decided, out of concern for [the Child], she should make a final phone call to Mr Weerapah’s office to confirm whether [the Mother] would be collecting [the Child] from school or if [Father’s Current Partner] was going to have to leave work early to collect [the Child].
13. At approximately 3.15pm [Father’s Current Partner] phoned me and told me that she spoken to Mr Weerapah’s Secretary who had hung up on her and that she then phoned [X] Primary School to let them know she was collecting [the Child] and would be arriving late at 4.00pm and could [the Child] please wait at the office for her.
14. [Father’s Current Partner] collected [the Child] at 4.00pm and delivered [the Child] back to [X] Primary School the following day at approximately 8.50am.
It is unnecessary to set out in full the contents of annexures DJ1 and DJ2 to the Father’s Affidavit which consist of emails between the parties and an email to the Father from the presiding Judge’s Associate. It suffices to observe that those emails evidence that on 12 March 2014 a dispute arose between the parties, and the Independent Children’s Lawyer (“ICL”), whose appointment had by that time expired, with:
a)the Father’s view that changeover was to take place at the Place of Changeover, as specified in order (9) of the 7 March 2014 orders, with the Mother to bring the Child to that place after school, and the Father to meet them there, and the next morning for the Father to bring the Child to the Place of Changeover in sufficient time to allow the Mother, who would meet them there, to take the Child to school;
b)at least implicitly, the ICL, whose appointment had by that time expired, supported the Father’s view; and
c)the Mother’s view, expressed through her solicitors, was that having regard to the terms of order (3) of the 7 March 2014 orders the Father had to pick the Child up from school at the cessation of school on 12 March 2014 and drop the Child back to school at the commencement of school on 13 March 2014 respectively, and that if changeover were to occur at the Place of Changeover the Child would have to be taken out of school early on 12 March 2014 and start school late on 13 March 2014. In correspondence with the ICL the Mother’s solicitors sought to justify this position by reference to the Education and Training Reform Act 2006 (Victoria) (“ETR Act”) which provides that the parent of a child has a duty where a child is enrolled at a registered school to ensure the child attends the school at all times when the school is open for the child’s instruction, citing Clair & Gall [2011] FMCAfam 294 where the Federal Magistrates Court of Australia refused to allow children to be taken out of school during school periods for a short holiday.
The Father’s case is that the Mother contravened order (3)(b) of the 7 March 2014 orders by refusing to bring the Child to the Place of Changeover.
The letters annexed as DJ2 to the Father’s Affidavit do not establish that the Mother contravened order (3)(b) of the 7 March 2014 orders by intentionally failing to comply with the order or making no reasonable attempt to comply with the order. The correspondence comprises a letter of 13 March 2014 from the Mother’s solicitors to the Father. That letter says nothing as to what occurred on 12 March 2014, but does express a view that changeover ought to occur at school based upon the relevant order. The 12 March 2014 letter from the Mother’s solicitors to the Father again suggests that school ought to be the place of changeover, and suggests that the Father obtain advice as to the meaning of the order, and says that if the Father brings a contravention application “by not collecting the child or returning the child as ordered, that is a matter for you”. Precisely what is meant by that is ambiguous, and it does not establish a failure to comply or no reasonable attempt to comply with the order by the Mother. Further, although the letter is dated 12 March 2014 there is no indication as to what time it was sent (it having been sent by email according to the letter) to the Father. Finally, the letter of 12 March 2014 to the ICL refers to the ICL’s email of 3.57pm. Once again it says nothing about what occurred on 12 March 2014 itself, but sets out an interpretation of order (3)(b) of the orders of 7 March 2014.
The emails annexed to the Father’s Affidavit as DJ1 do not advance the matter at all as there is no indication that there is any exchange of correspondence between the Mother’s solicitors and the Father, or the Mother and the Father, and no direct reference to what actually occurred on 12 March 2014.
In his oral evidence the Father was not cross-examined by the Mother in relation to the events of 7 March 2014, and given the state of the evidence described above that may have been a fortuitously strategic omission. More significantly, however, the Father did not cross-examine the Mother on the events of 12 March 2014, either in relation to her instructions to her solicitors, or at all.
The evidence of what happened on 12 March 2014, on the Father’s hearsay version of events, is that the Father’s Current Partner, having spoken to a secretary at the Mother’s solicitor’s office at about 3.15pm, and without indicating what was actually said, but not having achieved a satisfactory resolution of the issue, then phoned the Child’s school and told the school to have the Child wait at the office for the Father’s Current Partner to come and pick up the Child. The Child was therefore kept at the school at the request of, and to be picked up by, the Father’s Current Partner which he was at about 4.00pm.
In all the above circumstances, it is simply not possible to ascertain, to the required standard or degree of proof, whether the Mother might or might not have complied, or have made any reasonable attempt to comply, with the 7 March 2014 orders absent the Father’s Current Partner requesting that the Child be kept at the school to be picked up by the Father’s Current Partner. The Mother’s capacity to contravene the order was effectively taken out of her hands by the conduct of the Father’s Current Partner. There must be an actual contravention. Vine v Wands [2013] FCCA 2284 (“Vine”) is distinguishable because there was evidence in that case that prior to the father attending the changeover point the mother sent an email and instructed her solicitors to do the same advising the father that she would not be making the child available that day: Vine at paragraph 175 per Judge Scarlett. In this case there is no, or no sufficient, evidence that any such intention was so clearly put to the Father so as to give rise to an inference that the facts support a finding that there was no reasonable attempt to comply with order (3)(b) of the 7 March 2014 orders by the Mother. In this case there is no, or alternatively no sufficient, evidence of non-compliance, or a lack of any reasonable attempt to comply, with order (3)(b) of the 7 March 2014 orders by the Mother.
The Alleged First Contravention has therefore not been made out.
The Alleged Second Contravention
The Mother admits the Alleged Second Contravention, but says that she had a reasonable excuse for the contravention because it was necessary to protect the health or safety of herself and the Child: FL Act, s.70NAE(5) and (6)
The Alleged Second Contravention is said to have occurred at 5.00pm on 5 July 2014 at [omitted], and is stated in the Application – Contravention as follows:
Under (3)(c) of Orders made by the court dated 7/3/2014 the mother was required to deliver the [C]hild [name deleted] to myself in [omitted] according to paragraph (9) of the orders for half of the school holidays. She failed to do so and is withholding all communication between my son and myself, please refer to my Affidavit for a more detailed description.
The Court notes that order (3)(c) of the 7 March 2014 orders can only relate to a period from the breakup of school until 5.00pm on the second Saturday of the holidays, being a period of (usually) eight days from Friday afternoon to the second subsequent Saturday afternoon. In this regard, any subsequent alleged contravention is not adequately particularised in terms of date or times for the purposes of properly making out a contravention, and the Court has restricted itself to the alleged contravention of order (3)(c) of the Court’s orders of 7 March 2014.
The Father’s Affidavit at paragraphs 20-30 says as follows:
20. On Saturday 5/7/2014 [the Mother] phoned me at 12.45pm, I missed the call and [the Mother] left the following message “It’s [the Mother] please call me back”.
21. At 1.03pm [the Mother] left another message after I missed her call stating ‘[the Father] can you call me urgently, my phone”
22. At 1.06pm I phoned [the Mother] back. [The Mother] launched into a tirade, she was yelling and asked me if I was still with [the Father’s Current Partner] and if I knew about emails that [the Father’s Current Partner] had sent her. She stated that [the Father’s Current Partner] and I were defaming her character. She said I could come and pick up [the Child] and have him for the day but that he was not staying at my home because she had decided that [the Child] is not safe in my home. I said to [the Mother] “follow court orders please” then ended the phone call.
23. [The Mother] rang back at 1.12pm I did not to answer the call.
24. At 5.00pm as per court orders dated 7/3/2014 I arrived at the change over location, [omitted], with [the Father’s Current Partner’s mother]. [The Mother] failed to arrive with [the Child].
25. I sent her a text message at 5.06pm stating “Where are you I’m waiting at [omitted]”.
26. At 5.06pm [the Mother] called, I answered, she was immediately overtly hostile toward me, she was yelling, so loudly, that [the Father’s Current Partner’s mother] could hear her, she stated that she had told me that she had already spoken to me about the situation and that she would not deliver [the Child] to me. I told her I would go to the Police and she stated that she had already spoken with Police in regard to the matter and that they had told her “it was fine”
27. Immediately [the Father’s Current Partner’s mother] and I drove to the [omitted] Police Station and we both spoke with the attending police about the circumstances and they stated that as it was a federal matter they could not act as yet, I would need an order from the court for this to occur. Based on what they had told me I requested they check on [the Child’s] Welfare.
28. The [omitted] Police phoned me at 5.42pm to let me know that they had checked on [the Child] and that from what they witnessed [the Child] was OK. They also informed me that [the Mother] had reported to [omitted] Police about receiving emails and text messages from [the Father’s Current Partner]. They advised me to cease contact with [the Mother] that evening and attempt to communicate with her the following morning.
29. At 10.09am on Sunday 6th July I sent [the Mother] a letter via email and advised her by text message at 10.35am that I had sent her an email, annexured hereto and marked with the letters DJ3. The content of the letter was a request for [the Mother] to deliver [The Child] to myself by 5.00pm on 6/7/2014 and I would not seek to pursue the matter any further out of respect for [The Child]. This was a clear and reasonable attempt to resolve the matter without further involving the court.
30. I received no contact from [the Mother] in regard to my offer, she did not deliver [The Child] to myself at 5.00pm and as a result I am lodging these Notice’s of Contravention.
The 6 July 2014 letter sent by email from the Father to the Mother reads as follows:
Further to your numerous emails and telephone conversations you are advised that you are currently in breach of orders made by the court.
I have perused the alleged threatening emails sent to you by [Father’s Current Partner], at no point could a conclusion be drawn that there is any threat to [the Child’s] or your own safety only that [the Father’s Current Partner] is advocating for [the Child’s] welfare. Furthermore I note that the emails are not addressed to yourself only that you were copied in as a party.
I propose that you deliver the Child … to my address today at 5.00pm for the remainder of the school holidays, [the Child] will return to school on Monday 14/7/2014 upon which normal arrangements resume.
Should you agree I will take no further action in this matter, failing this I will have no alternative other than to lodge an immediate contravention application in the Federal Circuit Court.
See Annexure DJ3 to the Father’s Affidavit.
At hearing the Father tendered a series of text messages (as part of Exhibit 4) sent to the Mother between 5 and 16 July 2014 as follows:
5-07-14
5:06pmWhere are you Im waiting at [omitted]
6-07-14
10:35amI have sent you an email
8-07-14
3:15pmI would like to come and see [the Child] tomorrow. Please advise if this is OK.
9-07-14
5:43pmI want to see [the Child], I can’t believe you are doing this again. Let me know when I can see him again. Today is the fifth day you have over held him from me.
11-07-14
10:04amIf you want me to send documents to your solicitor. You will need to inform me who they are. I phoned Bayside and they informed me they are not representing you.
16-07-14
3:51pmCan you please let me know if you are dropping [the Child] off? I do not wish to waste my time driving to [omitted] if he will not be there. Thank you.
The Father also tendered a letter (as part of Exhibit 4) sent to the Mother on 14 July 2014, which was further to the letter referred to at paragraph 29 of the Father’s Affidavit which is set out above, requesting that the Mother advise of her intentions regarding as to whether the Child was spending time with the Father on Wednesday 16 July 2014 to Thursday 17 July 2014. This letter is irrelevant as it does not relate to the Alleged Second Contravention.
The Father’s evidence was limited, necessarily so by the fact that most of the emails in Exhibit 1 relied upon by the Mother, and also Exhibit 2, were material generated by the Father’s Current Partner, which it would appear he was unaware of until after they had been sent. In cross-examination he adopted what he said in his 6 July 2014 letter to the Mother, namely that he thought the emails from the Father’s Current Partner were “advocating for [the Child’s] safety”: see Transcript, 24 July 2014 at pages 6 and 7.
The Mother gave evidence with respect to the issue of her reasonable excuse. At the outset of her evidence she summarised her concerns fairly succinctly as follows:
There were 11 emails in one night. If you look at the times of the emails they were from 12 o’clock at night to 4.00am in the morning. They were all synchronised, one after the other, all night, the night before I was sending [the Child]. I felt that her language and the way that she speaks in these emails is quite disturbing and I was worried about [the Child’s] stability and I was worried about his safety, staying in the house with someone who is writing these kinds of emails the night before he is supposed to be staying there for an entire week. I believe I have acted protectively.
Transcript, 24 July 2014, page 12.
The Mother also gave evidence that:
a)a person who was prepared to write these types of things in an email would, in her view be prepared to denigrate her in front of the Child: Transcript, 24 July 2014, page 15;
b)the sending of the emails up until 4.00 o’clock in the morning was the equivalent of stalking, and the constant writing of negative comments about the Mother was a form of mental harm, as was the threat to publish a website about the entire case by a certain date unless the costs issue was resolved: Transcript, 24 July 2014, page 17; and
c)it was necessary to obtain an intervention order subsequently because of her concerns with respect to the Father’s Current Partner’s behaviour in circumstances where the Father’s Current Partner was not bound by the orders of this Court because she was not a party.
The reasonable excuse pleaded by the Mother relates to:
a)a series of emails primarily sent by the Father’s Current Partner, tendered in the proceedings as Exhibit 1, and which are set out hereunder; and
b)the portrayal of the [omitted] in the artwork allegedly from the Father’s Current Partner’s Facebook page in Exhibit 2.
The Court observes, as it did at hearing, that the emails referred to had not been seen or read by the presiding Judge prior to their being tendered as Exhibit 1 in these proceedings: Transcript, 24 July 2014, page 13. The emails in Exhibit 1 are set out in full below, save that in some of the emails some words have been wholly or partially omitted in the copying of the emails by the Mother and do not therefore appear as part of Exhibit 1. Where that has occurred the omission is shown by the use of square brackets and ellipses points. Overall, the content or sense of the emails is not significantly affected by the omissions. Where necessary, the Court has made certain factual observations following each email. The additional factual observations are necessary to assist in determining whether the Mother had a reasonable excuse by putting the emails in the correct factual context.
At 12.15am on 1 May 2014 the Father’s Current Partner forwarded to the Mother an email headed “MLC10230/2009” and copied to the Judges Associate personal work email address, the ICL and Mr Chalmers at Bayside Solicitors, who were the Mother’s solicitors. The text of the email reads as follows:
Dear Judge Lucev,
How did you ignore these Orders sought by the Independent Children’s Lawyer?
No other Orders were filed. [The Child] is still being emotionally and psychologically abused by his mother who, incidentally, is withholding contact of her newborn child to the father.
Yours Sincerely,
[Father’s Current Partner]
[Email, web and Facebook addresses deleted]
Attachments:
McKean Park Orders Sought.pdf.
The final position of the ICL was as set out in Sitch (No.1) at paragraph 4, as follows:
4. In essence, the Independent Children’s Lawyer recommended, in final submissions, orders that the Child continue to reside with the Mother, with alternate weekends and one night in the other week with the Father, and the usual orders for half of the holidays with the Father. The ICL also seeks ancillary orders with respect to issues associated with comment and non-denigration of the other parties, and restraints on medical and quasi-medical examinations other than with the written agreement of each party.
This reflected the fact that the ICL tendered at hearing on 30 September 2013 a minute of proposed orders for there to be equal shared parental responsibility for the Child, but for the Child to live with the Mother, and to spend time and communicate with the Father. The ICL specifically submitted that the Child:
… should not change residence at this time but should allow the child to continue in the consistent caring of the mother since separation at a school in which he has been progressing normally and to see the father on a regular basis and we say alternate weekends, Friday to Monday and night in the other week, half holidays, standard approach and that those should be final orders.
See Transcript, 30 September 2013, page 21. The minute of proposed orders was handed up at Transcript, 30 September 2013, page 15. Counsel for the ICL, Mr Eidelson, indicated that a copy had been provided to the parties. The minute of proposed orders handed up by Counsel for the ICL was, as is usual, not filed. In view of the controversy concerning it in these proceedings the Court has now marked it as Exhibit 5 in these proceedings.
At 2.11am on 5 May 2014 the Father’s Current Partner forwarded to the Mother an email headed “Fwd: MLC10230/2009” and copied to the Judge’s Associate personal work email address, Mr Chalmers at Bayside Solicitors and to the ICL. The text of the email reads as follows:
Dear Judge Lucev,
How did you ignore evidence from the Department of Human Services Child Protection dated from 17/10/2012 to 21 August 2013?
Did you think that your actions would be beneficial to an abused child?
Kind regards,
[Father’s Current Partner]
[Email, web and Facebook addresses deleted]
The Court notes that in Sitch (No.1) the “events primarily the subject of this application” (emphasis added) were described to include:
a)at paragraph 7(h):
in the latter half of October 2012 DHS received reports concerning the Child, alleging he had had either ulcerations or a blister on his penis for approximately five months, and that he had been taking naked spa baths with the Father and the Father’s Current Partner, and exhibiting sexualised behaviours.
b)at paragraph 7(n):
… on Christmas Day 2012 a report was received by DHS’s after-hours emergency service, that the Child had disclosed that the Mother had been taking photos of his penis;
c)at paragraph 7(p):
on 24 January 2013 the Mother was contacted by DHS and acknowledged having taken photographs of the Child’s penis (at a much earlier stage) and said that she had been advised to do so by police and by her lawyers.
d)at paragraph 7(r):
in mid-February 2013 DHS were contacted by the Mother alleging that the Child had disclosed that the Father tongue kisses the Child, puts his finger in the Child’s anus and that the Child had seen the Father having sex with the Father’s Current Partner.
e)at paragraph 7(u):
in June 2013 DHS expressed concern with respect to possible harm to the Child, emotionally and psychologically, if the Mother was coaching the Child to say things about the Father which were untrue;
f)at paragraph 7(v):
in July 2013 the Father reported an alleged attempt at self-harm by the Child, the detail of which, together with the DHS case work, are set out below.
In Sitch (No.1) what is described as a self-harm incident in July 2013 by the Child, and reported by the Father to DHS is dealt with at length at paragraphs 15-21. The subsequent DHS investigation is set out, also at length, at paragraph 22.
The Court also noted at paragraph 23 that the Family Report Writer had noted that the Child “had about 30 different appointments, assessments and interviews with police, DHS, doctors, social workers and a psychologist in relation to the Mother’s allegations of sexual abuse”.
The Father’s involving of DHS as a consequence of the Child’s alleging self-harm is also mentioned at paragraph 48 of Sitch (No.1).
In the Court’s consideration of the primary and other factors for consideration under s.60CC of the FL Act reference is made to DHS and their involvement on a number of occasions, specifically at paragraphs 53, 64, 68, 72, 75 and 80, but most particularly at paragraph 58 where the Court observed as follows:
58. There can be no doubt that the Child ought to have the benefit of a meaningful relationship with both parents. At the present time the Child does have the benefit of a meaningful relationship with both parents, notwithstanding the events of 2012 and 2013 in relation to the numerous medical, police and DHS examinations, primarily as a result of the Mother’s conduct, but also, in part, as a consequence of the Father’s conduct. It is clear from the material before the Court, particularly the DHS Case Note and the Family Report, that the Child has a meaningful relationship with both parents, and loves both parents, equally. This is evident from his comments that he wished that they would remarry. Significantly, however, the Child does not include the Father’s Current Partner amongst those whom he trusts.
The 5 May 2014 2.11am email from the Father’s Current Partner was responded to by the ICL in an email at 7.15am on 5 May 2014 which reads as follows:
Dear [Father’s Current Partner],
Your correspondence to the Court after the conclusion of the proceedings is highly improper, and I object strongly to the abusive manner in which you have sent your emails, apart from being highly disrespectful to the Court
If you are not satisfied with the learned judge’s views there are other remedies that are open to you to pursue at law.
As my position as ICL has terminated, and there are no ongoing proceedings I will delete all future emails received from you
Yours Faithfully,
McKean Park
Senior Lawyer,
MELBOURNE
At 1.43am on 10 June 2014 the Father’s Current Partner forwarded to the Mother an email headed “Child Abuse – [names deleted]” 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:
Dear Judge Lucev,
Family Law – with whom the child lives – DHS evidence – Victoria Police Evidence – mother denied father contact – mother accused fath[…]
It is hard to ignore the facts when other people are involved?
How long are you going to leave it? One wonders why you are even acting in Victoria.
A child is being abused. This is a matter that should have been heard by the Family Court not the Magistrate’s Court. [The Father] brought th[…]
You failed to give any weight to all DHS evidence bar one report (of over 30 reports that included findings that stated that DHS Child Pr[…]
You will find in the Court transcripts that the mother admitted receiving a letter from DHS Child Protection in October 2012 stating that s[…] damage to the child, she continued taking the child to appointments regardless and even went as far as to state (repeatedly) to Medica[…] overreacting as were we all according to you.
[The Child] suffers from emotional abuse – he has nightmares, he wets his bed, he now has problems with eating and is overweight, he has […] hours with him at is almost impossible.
You failed give any weight to the outcome of the Family Violence Intervention Order.
You failed to give any weight to the Family Report, by Dr J.
You made many serious mistakes in your findings.
[The Father] and I have NO MONEY or TIME to fight what you did.
[The Mother] continues to abuse [the Child] and now has another child. A child whose father, [name deleted], has been deni[…]
Judge Lucev please explain to all addressed in this email how [the Mother] is more willing to encourage a relationship with the father?
More significantly can you verify the safety of her new baby?
These are not submissions or fanciful tales. You need to address these issues before these children come to more harm.
Should you ignore this email I will ensure that it is pursued by The Honourable, Robert Clark, MP.
Kind regards,
[Father’s Current Partner]
The Court notes that this email was sent on 10 June 2014. At that time final orders had been made more than three months previously, and judgment had been reserved one month and two days earlier on the question of costs. There were no extant applications before the Court in relation to any issue (save costs) as at 10 June 2014. The Court notes that the matter was not heard by the “Magistrates Court”, but by this Court which has jurisdiction in family law matters under the FL Act.
In relation to evidence concerning DHS the Court repeats what is said at paragraphs 50-53 above.
As to the Family Report, the Family Report was extensively considered by the Court in Sitch (No.1), and hence for the making of the final orders on 7 March 2014: see Sitch (No.1) at paragraph 5(g). The detail of the Family Report was set out in Sitch (No.1) at paragraphs 23 to 36. In so doing the Court set out in a reasonably lengthy summary form, the observations of the Family Report Writer. The Court also noted its concern that the Family Report Writer had expressed views in areas outside of his expertise: Sitch (No.1) at paragraph 26; and that the Family Report Writer conceded that the failure to interview the Child as to the Child’s view about who he wanted to live with was a significant omission in the Family Report: Sitch (No.1) at paragraph 35. The Court noted that the determination of what was in the best interests of the Child was ultimately one for the Court to make, and not the Family Report Writer, as explained by the Family Court of Australia in Hall & Hall (1979) 5 Fam LR 609. The issues raised and address by the Family Report are all considered by the Court in its consideration in Sitch (No.1) at paragraphs 49 to 90, and the mere fact that the Family Report is not adverted to in every instance of an issue being dealt with does not mean that it has not been considered. In any event, the Family Report is specifically adverted to in the Court’s consideration in relation to:
a)whether the Child has a meaningful relationship with both parents): Sitch (No.1) at paragraph 58;
b)the Family Report suggesting that the residence of the Child might change: Sitch (No.1) at paragraph 65;
c)views expressed by the Child: Sitch (No.1) at paragraph 72; and
d)views expressed to the Family Report Writer concerning the emotional and intellectual needs of the Child and the capacity of the parties to provide for the needs of the Child: Sitch (No.1) at paragraph 80.
At 10.50pm on 23 June 2014 the Father forwarded to the Mother an email headed “Finalise matter [named deleted] MLC10230/2009” and copied to the Mother, the Judge’s Associate personal work email address, The Hon Robert Clark MP and Attorney-General of the State of Victoria, and Mr Chalmers at Bayside Solicitors. The text of the email reads as follows:
Please finalize MLC10230/2009 as a matter of urgency, this case has carried on far too long affecting all involved to a point that you wi[…] The decision made by the court was so unreasonable, that no court acting reasonably could have come to that decision having regard […] Should costs be awarded to the mother or should this case not be completed by the end of June 2014 attorney general The Honorable […] the court conduct.
[The Father]
The Court notes that at the time the email was forwarded judgment on the costs issue had been reserved for approximately one and one half months, and there remained no outstanding issues in relation to parenting orders. Further, the judgment in Sitch (No.1) was not the subject of an appeal by the Father.
At 12.22am on 4 July 2014 the Father’s Current Partner forwarded to the Mother an email headed “MLC CLOSE THE CASE” and copied to the Judge’s Associate generic email address, the Judge’s Associate personal work email address, Senator the Hon George Brandis QC, the Attorney-General of the Commonwealth of Australia, the ICL and to Mr Eidelson (who was Counsel for the ICL). The text of the email reads as follows:
[The Mother] is:
A narcissistic mother who fails to treat her child as an authentic person with wants and needs which may not match up with hers. She is […] something to be admired, she’ll take all the credit for it while at the same time telling their child that they could’ve done better.
She called him a liar as did her mother – IN COURT!
But she’s a saint isn’t she JUDGE LUCEV? You didn’t count on this did you?
I will not rest as I have no respect left for the law so bring it on.
It’s not going to look good when my solicitor goes to find the evidence from our case MLC10230/2009 and half of it is missing is it? Get […]
Because I care about [the Child] – and yes I don’t like CHILD ABUSERS.
Kind regards
In relation to the scandalous assertion that half of the evidence in this case “is missing”, and that the Father’s Current Partner’s solicitor would seek to find the evidence from the case, the Court notes that the Father’s Current Partner is not a party to the proceedings. Further, no application has been made to join her to the proceedings.
At 12.56am on 4 July 2014 the Father’s Current Partner forwarded to the Mother an email headed “Sitch and Jacobs” (being the anonymised name in the case citation for this matter) and copied to the Judge’s Associate generic email address, the Judge’s Associate personal work email address, the ICL and to Mr Eidelson. The text of the email reads as follows:
Dear Judge Lucev,
Such a thorough investigation by [first name omitted] “I lick Gingerbread among other things” [Ms P], she received a distressed phone call from […] outlined WERE NOT TO BE DISCUSSED.
The DHS investigation
22. As a result of the self-harm allegations made by the Father, there was a DHS investigation. Part of that investigation involved an […] of that interview is instructive and relevant to the disposition of this matter and is set out in large part hereunder:
o …
o X presented as healthy and happy. X was dressed in clean and appropriate school clothing. X had just got a hair cut and ha[...] present with any emotional distress during the visit.
o …
o In relation to the school holidays with mum
§ - X advised that he watched movies with A who’s the next door neighbour
§ - X advised that they ate popcorn
§ - X advised that they went to an almost fancy restaurant
§ - X advised that he played board games with his mum and they played snakes and ladders and monopoly
§ In relation to school holidays with dad.
§ - X advised that he played (omitted)
§ - X advised that his dad passed the scropion [sic] boss
§ - X advised that he didn’t do much at all
§ - X advised that went to the park and played cricket and footy with his dad
§ In relation to how things are at mum’s house
§ - X advised that things are pretty good
§ - X advised that when he was at his dad’s house his friend B was looking for him because he wanted to play with him
§ - X advised that he was missing them but he has friends at both houses
§ - X advised that his dad took him to a new school and said he would be going to two schools
§ - X advised that he thinks (omitted) Primary School is a bit better because it has more space
§ - X advised that his dad showed him the new school and told him that he didn’t want the judge to know that he had two[…]
§ In relation to the judge
§ - X advised that his dad said that the judge is vicious sometimes
§ - The writer asked X what he meant by vicious and X advised that he meant that he could be nasty
§ - X advised that his dad reckons that the judge told him to actually send me back to his mums
§ - the writer asked X if there was something wrong with going back to his mums
§ - X advised that his dad hates his mum
§ - X advised that [Father’s Current Partner] hates his mum more and said she’s a bitch and that (omitted) the dog would kill her
§ - X advised that he feels very upset when his dad and [Father’s Current Partner] say these things because his mum is nice
§ - X advised that [Father’s Current Partner] reckons that the judge is a bitch
§ - X advised that he felt good about going home to his mum because he was missing his mum
§ - X advised that his father was crying to death when he had to go home
§ The writer asked X how he felt about what the report said
§ - X said he felt Good
§ - X advised that he likes his dad too
§ - X advised that he feels good whever [sic] he’s going
§ - X advised that he feels good about everything
§ In relation to safety
§ - X advised that there’s nothing that made him feel unsafe
§ …
§ In relation to worries
§ - X advised that he didn’t have any worries
§ In relation to feeling angry
§ …
§ In relation to feeling upset
§ …
§ - X advised that his parents don’t make him upset unless they give him a smack when he’s done nothing wrong
§ - X advised that this didn’t happen very often
§ …
In relation to people X can speak to if he’s feeling upset, angry, unsafe or worried
§ - X advised of the following people
§ - The writer (Ms L)
§ - Mum
§ - Dad
§ - Teacher
§ - Mr L (Principal)
§ …
§ - The writer asked X what would he like to see happen if he got to pick
§ - X advised that he would like his mum and dad to marry and he would like to live with both of them in the one home. […]
Where is the thorough investigation JUDGE LUCEV?
No mention to the child about maybe hurting himself at all? In fact this jargon sounds very much like information [the Mother] has supplied […]
You are a disgrace.
You could successfully say I have no respect for you.
Go ahead and place any words in my mouth I know you are good at that!
As for [the Father] ever being able to have a conversation with [the Mother] who accused him and his loved ones of sexual abuse, you a[…]
You had the opportunity to help …[the Child] I really can’t understand what went wrong???
And you are as limp dick as Mark Finn, you won’t tell me.
In my life I have never experienced such weakness, how do you think the public would feel about you protecting a CHILD ABUSER?
[Father’s Current Partner]
[Mobile phone number deleted].
Ms P who is referred to by the Father’s Current Partner in the opening paragraph of the email was the DHS case worker who prepared the DHS Case Note, a summary of which appeared at paragraph 22 of Sitch (No.1) and which in large part is reproduced in the above email. There is nothing in the evidence which justifies or warrants the “I lick Gingerbread among other things” description of the DHS case worker in the email’s opening paragraph. The “judge” referred to by the Child (the Child is referred to as “X” in the Case Note) as being described as “nasty”, “vicious” and a “bitch” by the Father and the Father’s Current Partner respectively can only be Judge Burchardt who previously had conduct of this matter.
At 1.14am on 4 July 2014 the Father’s Current Partner forwarded to the Mother an email headed “LEAKED TO THE PUBLIC”, copied to the Judge’s Associate generic email address, the Judge’s Associate personal work email address and to Mr Chalmers at Bayside Solicitors. The text of the email reads as follows:
Dear Judge Lucev,
On behalf of …[the Father], I am letting you know that should this case not be closed by the 10 July 2014 that we will be creating a we […] take full responsibility for obtaining the information. We will include a poll to establish what the public thinks, you might learn something […]
PEOPLE WILL NOW JUDGE YOU.
We will be including all your email addresses as they are public knowledge.
We will be uploading videos on youtube and other social media outlets.
You can only ignore us for so long then it will explode in your face.
You disgust me.
[Father’s Current Partner]
[Mobile phone number deleted].
In relation to the closure of the case the Court again notes that:
a)final orders were made on 7 March 2014, and amended on 17 March 2014; and
b)costs were argued on 8 May 2014 with judgment reserved, and delivered on 21 July 2014.
Costs aside, there were no substantive issues outstanding at the time of the 4 July 2014 1.14am email.
To the extent that the 4 July 2014 1.14am email suggests that information in relation to the Court proceedings in this matter was to be published by electronic means or otherwise disseminated to the public or a section of the public by any means, and which identified a party to the proceedings or a person related to or associated with a party to the proceedings or a witness in the proceedings, the person publishing such information commits an offence under s.121(1) of the FL Act, punishable upon conviction by imprisonment for a period not exceeding one year. There is no evidence that the Father or the Father’s Current Partner have taken any steps to put into effect the threats to publicise this matter contained in the 4 July 2014 1.14am email.
At 1.43am on 4 July 2014 the Father’s Current Partner forwarded to the Mother an email headed “What’s your name?”, copied to Mr Eidelson, 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:
Hi Nicky Noah John Ensabella Eidelson,
What exactly is your name?
More to the point what was your motive for fucking our case?
Not even at “TIPPING POINT” you said to [the Father] in my presence.
You had it in for us from the start.
[The Mother] is a CHILD ABUSER.
She tells [the Child] that People are burrowing up under his bed and that he needs to stop them. it’s no wonder he wets his bed. He is also […]
Dr J is a good man, what is your problem with him?
[The Child] told both him and the VICTORIA POLICE that his mother had influenced his decision but we weren’t even at TIPPING POINT.
If [the Child] ever harms himself (I mean kills himself I will hold you responsible).
why would you encourage a Judge or Magistrate to leave a child in the care of someone with clear MENTAL ISSUES, of which will be […]
“I have five days to prove that [the Child] was abused by his father” as quoted by [the Mother] to [name deleted], Social Workers for the […]
[stuck finger in his anus, tongue kissed him, placed a stick on his penis, had sex in front of him”
NOT EVEN AT TIPPING POINT. What is wrong with you?
You guys are fucked, it’s all going to be out there.
You read me wrong.
In relation to the Mother’s alleged “MENTAL ISSUES” the Court considered the necessity for a psychiatric assessment of the Mother at hearing, and concluded that a psychiatric assessment was neither necessary nor supportable on the evidence: Sitch (No.1) at paragraph 46. The Court also took into account the necessity to bring the matter to some degree of finality. In reaching its conclusion the Court took account of the position of the Father, which changed from not seeking that the Mother undergo a psychiatric assessment prior to hearing, to seeking, in final submissions that there by a psychiatric assessment, and the Mother’s preparedness to undergo a psychiatric assessment afforded by the Court. The Court assessed the parties’ positions, and the evidence at some length, before arriving at its conclusion: see Sitch (No.1) at paragraphs 37 to 45.
In relation to the assertion that “it’s all going to be out there”, the Court repeats what it said above in paragraph 67 with respect to the publication of Court proceedings in family law matters.
At 2.19am on 4 July 2014 the Father’s Current Partner forwarded to the Mother an email headed “OBTUSE” 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:
SERIOUSLY?
There appears to be an acceptance by both parties and the ICL, that the Mother’s conduct in 2012-2013 resulted in medical over-servic[…] to the Child. The evidence is conclusive that the Child was not sexually abused by anyone at any stage. The Mother realises she says, […] the Child to see so many medical practitioners over a short period of time but says that until she saw Dr S, she did not obtain a proper […] proper diagnosis of the Child’s penile symptoms.
Err in judgement? Like yourself Lucev?
That report was written in OCTOBER 2012 at what point of the 2012-2013 period did [the Mother] work out that she was ab[…] evidence the letter sent to [the Mother] from DHS about her conduct affecting the emotional and psychological well being of [X][…] her in court that she had in fact received that letter.
[The Mother] also lodged the below POLICE REPORT where she attempted to force [the Child] to say the most disgusting things about his […]
Report dated 15/02/2013
Offence/Event: 17 FAM/INC/RPT
Remarks: FAMILY VIOLENCE EVENT INCIDENT – [suburb omitted] INCEST
REPORT BY 23348 EKX
ON 15/02/2013 VICTIM AND MOTHER ATTENDED [omitted] SOCIT. MOTHER REPORTED TO DHS & SOCIT VICTIMS FATHER/ALLEGED OFFENDER HAD SEXUALLY ASSAULTED HIM BY INSERTED HIS FINGER INTO VIC[…] ACCESS
VISIT AT FATHERS RESIDENCE, MOTHER FURTHER DISCLOSED FATHER SEEKING FULL CUSTODY OF VICTIM AND MATTER […]
FATHER
TONGUE KISSES VICTIM, PLACED STICK ON VICTIMS PENIS, OBSERVES FATHER AND GIRLFRIEND HAVING SEX, DISCLOS[…] VICTIM, DHS PRESENT. VICTIM DISCLOSED MOTHER TELLS HIM WHAT TO SAY ABOUT FATHER, ALL OF WHICH ARE LIES […]
GETS SMACKED OR GROUNDED. VICTIM LIKES FATHER, STAYING WITH HIM AND HE FEELS SAFE WITH FATHER. SPOKE […]
WRONGDOING OR COACHING OF VICTIM.FURTHER INTERVENTION CONTINUING VIA DHS WITH VICTIM WELFARE AND M[…]
You couldn’t have made a bigger error in judgement?
Sorry Lucev when was that report dated? 15th February 2013, Oh that’s right she hadn’t completed the Parenting Course then that wip[…]
Why did you and Noah John Ensabella Eidelson and Mark Finn allow this?
It is beyond belief!!!
Fix it.
[Father’s Current Partner].
The Court notes that at paragraph 7 of Sitch (No.1) it set out the events it primarily took into account as follows:
7. The events primarily the subject of this application are as follows:
a) in June 2012 the Mother took the Child to see the family doctors at the [omitted] Medical Clinic in relation to a complaint by the Child of painful urination or an irritated penis, which resulted in a doctor noting that the Child had a urinary tract infection;
b) in July 2012 the Mother returned to the [omitted] Medical Clinic on three occasions, and on the third occasion as a consequence of seeking a second opinion saw two different doctors, in relation to the Child’s penile symptoms, which on the third occasion included complaints of a red foreskin and red urethra (as noted by one doctor), and a simple inflammation and hygiene issues (as noted by another doctor);
c) in August 2012 the Mother raised the issue with the Father indicating that the Child had a medical problem or, on the Father’s account, had been “tampered with”;
d) on 22 August 2012 the Mother, Father and Child attended on a consultant paediatrician, Dr C, who examined the Child’s penis, and who advised that in his view there was no major abnormality, and no review was necessary;
e) on 17 September 2012 the Father obtained attendance records from the Child’s school, which indicated significant absences between 23 June 2012 and 13 September 2012 for medical reasons. The Father took the Child to see another doctor who provided the Child with a clearance to attend school, and who also examined the Child’s penis noting that there was mild redness but no ulceration;
f) the Father alleges that on and from 12 October 2012 the Mother withheld the Child contrary to the terms of the parenting plan which had been adhered to since November 2008;
g) in mid-October 2012 the Mother took the Child to the [omitted] Hospital, and ultimately saw Dr S, the details of which are set out further below;
h) in the latter half of October 2012 DHS received reports concerning the Child, alleging he had had either ulcerations or a blister on his penis for approximately five months, and that he had been taking naked spa baths with the Father and the Father’s Current Partner, and exhibiting sexualised behaviours. The Child was interviewed by the Sexual Offences and Child Abuse Investigation Team, and made no disclosures, and likewise made no disclosures which were relevant to any allegation of sexual assault to medical and allied health professionals at RCH. Part of the case work done by DHS is set out in further detail below;
i) in November 2012 the Mother obtained an interim ex parte intervention order, and made further allegations in relation to the penile symptoms suffered by the Child, and the Child’s general welfare (and in particular to his clothing and eating) when in the care of the Father;
j) on 16 November 2012 the Mother filed an initiating application in this Court, and in her affidavit alleged that the Child had been exposed to naked spa baths with the Father and that the Father had been intoxicated when with the Child at various times;
k) in late November 2012 the first return of the intervention orders occurred;
l) on [date omitted] 2012 the Father alleges that he was denied time with the Child on the Child’s birthday;
m) on 3 December 2012 on the first return in the then Federal Magistrates Court interim parenting orders were made by then Federal Magistrate Burchardt;
n) in December 2012 there were further accusations by the Mother made to the police, and the [omitted] Clinic concerning the Father’s care of the Child, and on Christmas Day 2012 a report was received by DHS’s after-hours emergency service, that the Child had disclosed that the Mother had been taking photos of his penis;
o) on 22 January 2013 the Child was interviewed by SOCIT officers in relation to the allegations of penis photographing by the Mother, but made no disclosures, except to say that he thought he was there in relation to the Father’s Current Partner slapping him on the face, but when questioned on that disclosed that his Mother had made him say that and that it was not true;
p) on 24 January 2013 the Mother was contacted by DHS and acknowledged having taken photographs of the Child’s penis (at a much earlier stage) and said that she had been advised to do so by police and by her lawyers. She also admitted performing Reiki techniques on the Child, but said that this occurred clothed and was not on his penis;
q) in February 2013 a Magistrates Court hearing with respect to the intervention order was adjourned;
r) in mid-February 2013 DHS were contacted by the Mother alleging that the Child had disclosed that the Father tongue kisses the Child, puts his finger in the Child’s anus and that the Child had seen the Father having sex with the Father’s Current Partner. The Child was subsequently interviewed by SOCIT officers and advised that the Mother had told him to say these things, but none of them were true;
s) in March 2013 the Father was required to attend upon the police in relation to an alleged minor breach of the intervention order;
t) in April 2013 the Father says that he was advised by SOCIT that the Mother had coached the Child in relation to certain allegations, exposed the Child to adult concepts, and punished the Child for failing to say things that she required to the police;
u) in June 2013 DHS expressed concern with respect to possible harm to the Child, emotionally and psychologically, if the Mother was coaching the Child to say things about the Father which were untrue; and
v) in July 2013 the Father reported an alleged attempt at self-harm by the Child, the detail of which, together with the DHS case work, are set out below.
The Court also specifically took into account that a repeat of the events of 2012-2013 was not, on the evidence given by both the Mother and Father, a significant possibility, for the purposes of assessing the risk of harm to the Child under s.60CC(2)(b) of the FL Act: see Sitch (No.1) at paragraphs 67 to 71. Furthermore, the Court took into account the fact that the Mother had done a post-separation parenting course which she said had assisted her to realise the difficulties that she had caused the Child by having the Child examined so frequently, and that she ought to take the view that she should look forward and not back realising the importance of the parental role in relation to the Child: Sitch (No.1) at paragraph 55.
In relation to the invocation “Fix it” in the 4 July 2014 2.19am email, the Court notes, again, that at this point there was no appeal against the Court’s final orders, and that the only outstanding issue was in relation to costs.
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”.
That excerpts from the Family Report were disclosed to the Child by the Father might be inferred from the DHS Case Note where the Child told the DHS case worker that “his Dad showed him the new school and told him that he didn’t want the Judge to know that he had two schools” from which it might be inferred that the Father had told the Child that he would be going to another school because of the content of the Family Report, and the Child’s responses to the case worker’s question about the Family Report: see Sitch (No.1) at paragraph 22.
At 3.23am on 4 July 2014 the Father’s Current Partner forwarded to the Mother an email headed “Liar” and copied to the Judge’s Associate generic email address, the Judge’s Associate personal work email address and Mr Chalmers at Bayside Solicitors. The text of the email reads as follows:
Dear Judge Lucev,
Did you read the case outline submitted by the ICL attached to this email?
Seems to me that you very much didn’t. Was that laziness or just allowing someone to do it for you?
The Father’s position on the necessity for a psychiatric assessment of the Mother changed in final submissions and he urged that the […] the Court and not demurred from by the Father, this would probably be unnecessary if orders were granted in the Father’s favour.
[The Father’s] stance never changed he and I always welcomed a psychiatric assessment why wouldn’t we? She is a basket case. He always […] such as Rika Tiecher bled us dry we lost time and hope.
Do it again LUCEV bleed us dry.
You really are obtuse.
As indicated at paragraphs 46-47 above the ICL’s final position, as indicated in a minute of proposed orders by the ICL tendered at hearing on 30 September 2013 was for there to be equal shared parental responsibility for the Child, and for the Child to live with the Mother and to spend time and communicate with the Father.
Ms Tiecher was Counsel for the Father on the first day of the hearing. Ms Tiecher was, together with the Father’s then solicitors, not instructed by the Father to appear on the second day of the hearing. It was the costs thrown away by reason of having to adjourn on the second day that were ordered to be paid by the Father to the Mother (who was also then represented) in Sitch (No.2).
At 3.30am on 4 July 2014 the Father’s Current Partner forwarded to the Mother an email untitled 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:
Apologies for all being human,
Especially you JUDGE Lucev,
too err is to fail.
[The Child] feels that.
Way more than you will ever know.
And I would never ask anything of you except for him.
At 3.51am on 4 July 2014 the Father’s Current Partner forwarded to the Mother an email headed “Another blatant fuck up” and copied to the Judge’s Associate generic email address, the Judge’s Associate personal work email address, the Mother and the ICL. The text of the email reads as follows:
it is clear from the Mother’s evidence and her participation in the post-separation parenting course, that she is more likely to be support […] relationship between the Mother and the Child.
I’m sorry LUCEV what evidence??? It is clear??? Where’s your head at???
P.S. You are retarded. If you read a shred of evidence you would know that [The Mother] requested an adjournment on July 11 whe[…]
Sorry when did she complete the parenting course?
Why don’t you inform the Honourable Senator? Seeing as you know so much.
Disgrace. You and Ensabella are a disgrace.
The first paragraph of the above email is part of a much longer paragraph in Sitch (No.1): see paragraph 31. The actual quote is as follows:
… it is clear from the Mother’s evidence, and her participation in the post-separation parenting course, that she is more likely to be supportive of a relationship between the Father and the Child, than the Father is to be supportive of a relationship between the Mother and the Child.
See Sitch (No.1) at paragraph 31.
The relevant evidence is summarised by the Court at paragraphs 50 to 57 in Sitch (No.1) as follows:
50. There is a very long history of cooperation post-separation between the parents without the need for Court orders. There has been respect, cooperation and shared parenting historically, without a scintilla of a problem, until the events which commenced in June 2012.
51. On the evidence at hearing it appears that the Mother is more prepared to foster a relationship between the Child and the Father, than the Father is prepared to foster a relationship between the Child and the Mother. The Father, and the Father’s partner evinced no idea as to how to repair the damage done to the relationship by recent events. There is a very real risk in those circumstances that they would not endeavour to repair the relationship with the Mother if the Father’s application for change of residence for the Child were to be successful. The Father specifically observed that it was difficult for his family to be kindly disposed to the Mother. The Father’s view in relation to these matters is not assisted by the Father’s Current Partner, who appeared overtly hostile to the Mother.
52. In terms of future parenting the Mother gave credible, and creditable, evidence with respect to respecting the Father’s role, and his right to have a relationship with the Child. On the evidence, the Mother evinces a greater future capacity to ensure that the Child maintains a proper and appropriate relationship with the Father, than does the Father with respect to the Child’s maintenance of a relationship with the Mother, and as indicated above, the latter is not assisted by the possibly negative influence of the Father’s Current Partner in that regard. Whilst the Father did indicate that he was desirous of the Child maintaining a relationship with the Mother, he was devoid of ideas [as] to how this might be facilitated if there was a change of residence.
53. The facts of the Father’s new partner’s intense dislike of the Mother are views which have been made known by her to the Child. If the Child were to live with the Father the Court is concerned that the impact of those views, and the seeming acquiescence in them by the Father, would be damaging to the long-term relationship between the Child and the Mother, which has been the primary care-giving relationship to date in the Child’s life, and, moreover, until the events of April 2012, one in respect of which there appear to have been no, or no significant, problems. It is also not without significance, that the Child leaves the Father’s Current Partner off the list of persons whom he would trust, when asked about that by DHS.
54. In the circumstances, the Court is of the view, and agrees with the ICL in this regard, that the Mother is more prepared to foster a relationship between the Child and the Father, than the Father is prepared to foster a relationship between the Child and the Mother.
55. The Mother has done a post-separation parenting course, which is entirely appropriate, and which she says has assisted her to realise the difficulties that she caused by having the Child examined so frequently, and which has assisted her, in general terms, to take the view that she ought to [look] forward and not back, and in realising the importance of the parental role in relation to the Child.
56. The Mother undertook the post-separation parenting course voluntarily. Neither the Father nor the Father’s partner has undertaken such a course.
57. The Court considers that what the Mother said with respect to the parenting course was sincere, and she did not strike the Court in any way as dissembling.
At hearing there was no challenge to the fact that the Mother had completed a post-separation parenting course.
There was no evidence given concerning the Mother’s alleged requested for an adjournment on July 11 (presumably in 2013), and the relevance of that request, if it was made, is not immediately apparent.
The reference to “Ensabella” in the final line of the email appears to be a reference to Mr Eidelson, Counsel for the ICL: see paragraph 68 above where the Father’s Current Partner refers to “Nicky Noah John Ensabella Eidelson”.
At 4.08am on 4 July 2014 the Father’s Current Partner forwarded to the Mother an email headed “NO SUBJECT” and copied to the Judge’s Associate generic email address, the Judge’s Associate personal work email address, the Mother and the ICL. The text of the email reads as follows:
33. In relation to the Family Report, the Court notes that the determination of what is in the best interest of the Child is ultimately one f[…]
Ah the old Hall and Hall that I have not yet been able to access as a societal pleb.
Lucev, Family Report Writers are placed for a reason. I simply don’t understand your hatred of Dr J or your admiration of [Ms P] “I […]
I just realised that that just explained itself.
Say no more.
[The Child] still suffers but [The Mother] will always be available to lick.
At 4.19am on 4 July 2014 the Father’s Current Partner forwarded to the Judge’s Associate generic email address, the Judge’s Associate personal work email address, the Mother and the ICL an email headed “SO MANY MISTAKES MLC10230/2009”. The text of the email reads as follows:
42. The Father’s suggestions are those of an unqualified person and his change of position in final submissions to seeking an order for […] opportunistic and based upon the Family Report writer’s comments.
[The Mother] is a monster. I can say what I want she always does and is never questioned about it. How dare you say these things […]
YOU LUCEV ARE NOT QUALIFIED.
LUCEV need you be reminded of the ICL’s viewpoint. NO OTHER CASE OUTLINE WAS SUBMITTED TO THE COURT!!!!! SEE AT […]
You can’t deny this so good luck!
[Father’s Current Partner]
The Overtly hostile scapegoat bitch.
The reference to the Father being an unqualified person was made with respect to his assertions concerning the Mother’s mental health, and his change of position in final submissions to seek an order for psychiatric assessment of the Mother when none had been sought prior to the hearing.
The Court repeats what is said above at paragraphs 46-47 concerning the ICL’s final submissions in which the ICL argued, by reference to proposed orders handed up in Court on 30 September 2013, that the Child should live with the Mother and spend time with the Father, and that there should be equal shared parental responsibility.
The Court notes that the Father’s Current Partner signs herself off as “The Overtly hostile scapegoat bitch”. This harks back to what the Court said concerning the Father’s Current Partner appearing to be “overtly hostile to the Mother”: see Sitch (No.1) at paragraph 51.
The Court has considered whether, in light of the emails from the Father’s Current Partner making scandalous allegations concerning the presiding Judge, that the presiding Judge ought to recuse himself on the basis of apprehended bias. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question required to be decided: see Redmond & Redmond & Ors [2013] FamCAFC 161 at paragraphs 161-162 per May, Ainslie-Wallace and Kent JJ, citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-349 per Gleeson CJ, McHugh, Gummow and Hayne JJ; [2000] HCA 63 at paragraphs 5-24 and Johnson v Johnson (2000) 201 CLR 488 at 492-493 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; [2000] HCA 48 at paragraph 12 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, and Bahonko, in the matter of Bahonko [2013] FCA 683 at paragraph 11 per Tracey J.
The Court has considered a number of factors in determining the recusal issue. First, that the scandalous allegations are made by a non-party, albeit that the Father’s Current Partner is the partner of a party. Second, that the making of scandalous allegations of the type made by the Father’s Current Partner does not provide a basis for a recusal on the basis of apprehended bias. Albeit in the context where a party was making the scandalous allegations, the Federal Court recently observed in Zaghloul v Woodside Energy Limited [2014] FCA 306 at paragraph 35 per Barker J (“Zaghloul”) that:
35. It is not open to any party to a proceeding in this Court to make scandalous allegations against a judge or officer of the Court and then, in effect, rely upon them to assert that a proceeding should be transferred out of a particular court because the party considers the judge or court officer is or will be biased against them when the proceeding comes on for hearing. The Court controls the practice and procedure of the Court, not a party at their election. Dr Zaghloul's attempt to do so is an abuse of process.
As can be seen from placing the allegations in their proper factual context, as has been done above, there is no proper basis for the scandalous allegations made by the Father’s Current Partner, and therefore no basis for giving any credence or tolerance to those allegations: see Zaghloul at paragraph 34 per Barker J; Bahonko v Nurses Board of Victoria [2008] FCAFC 29 at paragraphs 3 and 10 per Gyles, Stone and Buchanan JJ; Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42 at 50 per Mansfield J; [2010] FCA 413 at paragraph 34 per Mansfield J. Third, a judge is, by reason of qualification and experience, generally well-placed to set to one side scandalous allegations of the type here made, and to objectively determine the relevant issue or issues. Fourth, in this case, the relevant issue which now falls for determination is whether or not the Mother had a reasonable excuse in relation to the Alleged Second Contravention, which requires a consideration, not of the impact of the scandalous allegations in the emails upon the presiding Judge, but of whether those emails, viewed as a whole (and therefore including the scandalous allegations) constitute a reasonable excuse for the otherwise admitted contravention.
In all of the above circumstances, the Court has determined that the presiding Judge ought not recuse himself on the basis of apprehended bias.
The Alleged Second Contravention is of order (3)(c) of the 7 March 2014 orders, which is a spend time with order, with a period of operation of eight days.
For the Mother to demonstrate a reasonable excuse for contravening this order she must show that it was necessary to protect the health or safety of a person (including herself), and that the contravention was for a period no longer than necessary to protect the health or safety of the Child and herself. In this case the Mother asserts that the persons whom it was necessary to protect were the Child and herself.
In the Court’s view the conduct of the Father’s Current Partner gives rise to a legitimate concern that she may be a threat to the health or safety (including the psychological health) of the Child. That threat is established by:
a)the final email sent at 4.19am on 4 July 2014 in which:
i)the Father’s Current Partner describes the Mother as a “monster”, and in which she goes on to say that the Father’s Current Partner can say what she wants, leaving it open to infer, as the Court does, that she will say whatever she wants about the Mother in front of the Child; and
ii)reflects an “overtly hostile scapegoat bitch” mentality, which in the overall context of the email, and the earlier emails, gives rise to a concern about the psychological stability of the Father’s Current Partner or, at least, her capacity to harbour resentment toward the Mother in relation to the Court’s finding almost four months earlier that the Father’s Current Partner was “overtly hostile” to the Mother;
b)the threat made by the Father’s Current Partner in the email sent at 1.14am on 4 July 2014 to create a website to publicise this case. The threat to do so clearly failed to take account of the best interests of the Child and the possible effects on the Child of the publication of material concerning him;
c)the accusations made, abusive language and aggressive tone of many of the emails in Exhibit 1 which would cause a person in the position of the Mother to be legitimately concerned about the Child spending time with a person who is prepared to:
i)accuse a Judge of ignoring, and more particularly hiding, evidence;
ii)suggest that the DHS case worker, who was just doing her job, licked “other things”, which is a suggestion laced with sexual innuendo;
iii)describe both the Judge and the ICL as “limp dick[s]”;
iv)accuse the Judge of protecting a child abuser, namely the Mother;
v)accuse the Mother of being a child abuser;
vi)express “disgust” for the Judge;
vii)accuse Counsel for the ICL of “fucking our case” and describing him as “fucked”;
viii)accuse the Mother of being mentally ill and “a basket case”;
ix)suggest that the Judge might “join Chris Mainwaring” a footballer who died in circumstances not publicly explained;
x)describe the Judge as being “retarded”;
xi)describe the Judge and Counsel for the ICL as a “disgrace”;
xii)describe the Mother as “available to lick”, again a phrase laced with sexual innuendo;
xiii)describe the Mother as a “monster”; and
xiv)distributes the emails variously to the Mother, the Mother’s solicitors, the ICL and the Judge’s associate;
d)the timing of the sending to the Mother of the email sent on the morning of 4 July 2014 at 12.22am, 12.56am, 1.14am, 1.43am, 2.19am, 2.56am, 3.23am, 3.30am, 3.51am, 4.08am and 4.19am, which suggest not only a degree of feverish agitation on the part of the Father’s Current Partner, but also an intention on the part of the Father’s Current Partner to harass the Mother (who described the process as like being “stalked”);
e)the timing of the sending of the emails on 4 July 2013 being the day before the Child was due to be changed over to spend eight days of the school holidays with the Father, in the company of the Father’s Current Partner; and
f)the re-agitation of issues determined almost four months previously in a considered reserved judgment in Sitch (No.1).
In all of the above circumstances the Mother had a reasonable excuse, namely that allowing the Child to spend time with the Father in the company of the Father’s Current Partner might lead to psychological abuse of the Child by the Father’s Current Partner, particularly in the context of the effect that the Father’s Current Partner’s conduct might have on the relationship between the Mother and Child. The Father’s explanation at hearing that the Father’s Current Partner acted as she did out of concern for the Child’s welfare cannot be accepted having regard to the matters set out above.
Having regard to:
a)the nature and content of the emails, as discussed above;
b)the significant period of time over which the emails were sent, the first of the emails in Exhibit 1 being sent on 1 May 2014 and the last on 4 July 2014; and
c)the seeming incapacity of the Father’s Current Partner to let go of the issues already determined by the Court, and which were not subject to appeal, and her consequent ongoing overt hostility to the Mother, as well as to others involved including the Judge, the ICL and Counsel for the ICL,
the Court does not consider that the period (eight days) the subject of the Alleged Second Contravention was any longer than necessary to protect the health and safety of the Child, or the Mother, and in respect of the Mother it is clear that the emails take the overt hostility to a higher level than that which existed when the Court found in Sitch (No.1) that the Father’s Current Partner was overtly hostile to the Mother: see Sitch (No.1) at paragraph 51 (and see also paragraphs 52-53).
In making the above determination the Court has not had regard to the artwork in Exhibit 2, as it is not apparent on the face of the exhibit as to when that artwork was posted on Facebook, and the Court cannot be satisfied that it was posted prior to 5 July 2014.
It follows that the Mother has established a reasonable excuse for contravening order (3)(c) of the 7 March 2014 orders as alleged.
Other matters
The Court notes that the Father in the Father’s Affidavit seeks a variation of the orders of 7 March 2014 with respect to shared parental responsibility, with whom the Child lives and with whom the Child spends time. The Court is not prepared to consider those issues in the context of this Application – Contravention, or to consider whether the Father might have a compensatory order for the time that the Child did not spend with him on and from 5 July 2014. That is because in the circumstances of this case, the conduct of the Father’s Current Partner in sending the emails in Exhibit 1 set out above constitutes such a significant change in circumstances that the Court, as presently constituted, would not be prepared to consider varying the primary orders or making a compensatory order until such time as it had considered, and given the parties and others the opportunity to comment as to whether:
a)to join the Father’s Current Partner as a party to these proceedings;
b)the Father’s Current Partner should undergo a psychiatric assessment or some form of counselling in light of the content of the emails in Exhibit 1; and
c)a further Family Report ought to be prepared by a new Family Report Writer.
Conclusion and orders
The Court has concluded that neither of the alleged contraventions has been made out. It follows that the Application – Contravention filed by the Father on 8 July 2014 must be dismissed. The Court will order that there be no order as to costs given that both parties were not legally represented.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 22 August 2014
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