Bacci & Bacci
[2025] FedCFamC1F 341
•26 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bacci & Bacci [2025] FedCFamC1F 341
File number(s): SYC 2906 of 2022 Judgment of: JUSTICE BEHRENS Date of judgment: 26 May 2025 Catchwords: FAMILY LAW – PARENTING – Where the Father self-represented despite an order pursuant to s 102NA of the Family Law Act 1975 (Cth) – Where the Father sought the discharge of the single expert – Where the Father sought the discharge of the Independent Children’s Lawyer – Where the Father sought the discharge of the children’s psychologist – Where all discharge applications were dismissed – Where the Father has a significant distrust of professionals – Where the Father’s strongly held views with respect to certain matters have negatively impacted the children – Where the Father has experienced mental health issues – Where the Father is identified by the single expert to have “a paranoid and narcissistic personality structure” – Where no findings can be made about family violence – Where the Father has undermined the Mother’s parenting – Where the Father does not have capacity to meet the children’s emotional and psychological needs – Where the children (aged 14 and 11) are expressing strong views to live with the Father – Where the children are heavily aligned with the Father – Where the children are experiencing behavioural and psychological difficulties – Where orders made for the children to live with the Mother – Where orders made for the Mother to have sole decision making with respect to long term issues – Where orders made for the children to spend no time with the Father – Where orders made for restraints against the Father and Paternal Grandmother – Where the orders are to be explained to the children by the Independent Children’s Lawyer with the assistance of a Court Child Expert – Where orders made for all extant applications to be dismissed Legislation: Australian Human Rights Commission Act 1986 (Cth)
Family Law Act 1975 (Cth) ss 60CC, 60CG, 62B, 65DA, 65Y, 68B, 68LA, 102NA
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Human Rights Act 2004 (ACT)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Mental Health Act 2007 (NSW)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
United Nations Convention on the Rights of the Child, Art 12
Cases cited: Dickens & Dickens [2016] FamCA 115
Fisher & Fisher [2021] FamCA 236
Horner & Horner [2018] FamCA 487
Knibbs & Knibbs [2009] FamCA 840
Lloyd & Lloyd and Child Representative (2000) FLC 93-045
T & L (2000) FLC 93-056; 27 Fam LR 40; [2000] FamCA 351
Toma & Doyle [2022] FedCFamC1F 215
Division: Division 1 First Instance Number of paragraphs: 139 Date of last submission/s: 17 April 2025 Date of hearing: 14-17 April 2025 Place: Sydney Solicitor for the First Applicant: Litigant in Person Solicitor for the Second Applicant: No Appearance Counsel for the Respondent: Mr Butters Solicitor for the Respondent: Santone Lawyers Pty Ltd Counsel for the Independent Children's Lawyer: Mr Hill Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 2906 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BACCI
First Applicant Father (“the Father”)
MS DAWSON
Second Applicant (“Ms Dawson”)
AND: MS BACCI
Respondent Mother (“the Mother”)
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUSTICE BEHRENS
DATE OF ORDER:
26 MAY 2025
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged. Order 23 of the orders dated 22 May 2024, providing for the parents to pay the costs of Dr B’s attendance for cross-examination in equal shares, remains in force.
2.The Mother has sole parental responsibility and sole decision-making authority in respect of all decisions concerning major long-term issues for X (born in 2011) (“X”) and Y (born in 2013) (“Y”).
Living/Spend Time Arrangements
3.X and Y will live with the Mother and spend no time with the Father.
Injunctions against the father
4.Pursuant to s 68B of the Family Law Act 1975 (Cth), and for the personal protection of X and Y, the Father is restrained from:
(a)Approaching X or Y, or approaching within 100 metres of their place of residence or employment, school or extracurricular activity;
(b)Contacting or communicating with or attempting to communicate with X or Y, by any means, including by third party, or by telephone, electronic platform such as SMS, iMessage, Facebook, WhatsApp, Instagram, other social media or through any gaming device or chat software;
(c)Removing or attempting to remove X or Y from the care of the Mother, including by a third party;
(d)Taking X or Y or either of them into his care or having them or either of them in his care.
(e)Permitting, encouraging or facilitating X or Y to be in the presence of the paternal grandmother, Ms Dawson, or attending her residence.
5.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the Mother, the Father is restrained from:
(a)Approaching the Mother, or approaching within 100 metres of her residence or place of employment;
(b)Contacting or communicating with or attempting to communicate with the Mother by any means, including by third party, or by telephone, electronic platform such as SMS, iMessage, Facebook, WhatsApp, Instagram, other social media or through any gaming device or chat software.
Injunctions against the paternal grandmother
6.Pursuant to s 68B of the Family Law Act 1975 (Cth), Ms Dawson is restrained from:
(a)Approaching or being in the presence of X or Y;
(b)Taking X or Y into her care;
(c)Contacting or communicating with or attempting to communicate with X or Y, by any means, including by third party, or by telephone, electronic platform such as SMS, iMessage, Facebook, WhatsApp , Instagram, other social media or through any gaming device or chat software.
Attendance of Y and X at counselling and/or therapy
7.The Mother shall forthwith take steps to arrange for X and Y to attend counselling or therapy with a counsellor or therapist of her choice, and will take all reasonable steps to ensure that X and Y attend all appointments with their counsellor/therapist while the counsellor/therapist recommends such appointments continue.
Overseas Travel and Passport
8.The Mother is authorised by these orders to apply for an Australian passport on behalf of X and Y and that the Father’s consent for any such application is dispensed with.
9.Pursuant to s 65Y of the Family Law Act 1975 (Cth), the Mother is permitted to travel outside of the Commonwealth of Australia with X and/or Y.
Release of the Family Report and Court Orders
10.Leave is granted to the Mother to provide a copy of these orders, the single expert reports of Dr B dated 9 November 2022 and 19 July 2024 and the Reasons for Judgment of Justice Behrens to her and/or X’s and/or Y’s mental health practitioners, counsellors and therapists.
11.The Mother shall provide a copy of these Orders to any school at which X and/or Y are enrolled.
OTHER
12.The Independent Children’s Lawyer, with the assistance of a Court Child Expert, is to explain these orders to X and Y by such means (including whether in person or by videolink) as the Court Child Expert determines is appropriate, and for this purpose the Independent Children’s Lawyer is forthwith to contact Court Child Services at the Sydney Registry of the Federal Circuit and Family Court of Australia for the purpose of making an appointment for this to occur.
13.The Mother is to comply with all directions of Court Child Services and the Independent Children’s Lawyer in relation to Order 12.
14.Unless otherwise exempted by Legal Aid NSW, the Mother and the Father shall each pay half of the costs of the Independent Children’s Lawyer.
15.All extant applications are dismissed.
AND IT IS NOTED THAT:
A.Orders have previously been made for the parties to share equally in the costs of Dr B’s attendance for cross-examination. That order remains in force. The Court has been told that the Mother paid all of the costs of Dr B’s attendance for cross-examination on 15 April 2025 and there are outstanding invoices for the costs of Dr B’s attendance for cross-examination on 16 April 2025.
B.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BEHRENS J
BACKGROUND
These are parenting proceedings between the applicant father and Ms Bacci, the respondent mother. At the commencement of the hearing, the father told me that he wished to be addressed by his first name, and so I have referred to him in that way in these Reasons. Mr Bacci and Ms Bacci are the parents of X, now aged 14, and Y, now aged 11. X and Y live with Ms Bacci and spend professionally supervised time with Mr Bacci. The major issue I need to decide is whether X and Y should move to live with Mr Bacci. For reasons which will become plain, that would likely have the consequence that they would spend little or no time with Ms Bacci.
X and Y are expressing strong views to live with their father. X, in particular, is experiencing difficulties of various kinds in the care of Ms Bacci. It is Mr Bacci’s case that X and Y are not safe nor having their needs met in the care of Ms Bacci. It is Ms Bacci’s case that, because of Mr Bacci’s mental health and behaviour, X and Y would not be safe nor have their needs met in the care of their father. The single expert, Dr B, recommends that X and Y remain living with Ms Bacci and spend no time with their father. That position is supported by the Independent Children’s Lawyer (“ICL”).
Brief history of proceedings
Mr Bacci commenced these proceedings by way of an Initiating Application filed on 3 May 2022 in which he sought that he and Ms Bacci share parental responsibility, and that X and Y reside “with the Father and the Mother as ordered by the Court”, as well as various other interim orders. At that time, Ms Bacci, X and Y were living in a women’s refuge, having vacated the family’s home in March 2022 in the days following Mr Bacci’s scheduling under the Mental Health Act 2007 (NSW). Mr Bacci was discharged from C Hospital in March 2022. Ms Bacci, X and Y remained in crisis accommodation until June 2023, when they moved into the maternal grandmother’s residence. They remain living there. Mr Bacci remains living in the former family home. There has been a property settlement.
On 19 July 2022, interim orders were made for X and Y to live with Ms Bacci and spend supervised time with Mr Bacci, for Mr Bacci to undergo random drug testing at the request of the ICL, and for the appointment of Dr B as the single expert. In late 2022 a final two-year Apprehended Domestic Violence Order (“ADVO”) was made by consent and without admissions against Mr Bacci, with Ms Bacci as the protected person. On 30 January 2023, interim parenting orders were made by consent which progressed time to unsupervised daytime, subject to certain conditions. In September 2023, X and Y commenced spending unsupervised overnight time with Mr Bacci, by agreement between their parents. In May 2024, Mr Bacci took X and Y into his care and they spent no time with Ms Bacci until after an urgent interim hearing on 22 May 2024. Interim orders were made on that date for X and Y to live with Ms Bacci, for time and communication with Mr Bacci to be suspended for a short period, and then for the children’s time with Mr Bacci to resume each alternate weekend. In June 2024, X and Y again did not return to Ms Bacci’s care and a recovery order issued. On 26 June 2024, the previous interim order providing for unsupervised time with Mr Bacci was discharged, and orders were made for X and Y to spend professionally supervised time with their father and for various restraints, including restraints on Mr Bacci communicating with X and Y. Those are the orders which remain in place until today.
Aspects of the hearing
Representation
On 3 September 2024, an order was made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”), preventing Mr Bacci and Ms Bacci from personally cross-examining each other. On 23 January 2025, Mr Bacci was made aware of the implications of this order, and indicated to the Court that he did not intend to obtain legal representation. In fact, a solicitor was briefly on the record for him in the lead-up to the final hearing, but sought, and was granted, leave to withdraw at the commencement of the hearing. Mr Bacci self-represented. Accordingly, Ms Bacci was only cross-examined by counsel for the ICL. Mr Bacci was cross-examined by counsel for Ms Bacci and counsel for the ICL. Throughout the proceedings, Mr Bacci was assisted by a McKenzie friend.
Ms Dawson
X’s and Y’s paternal grandmother, Ms Dawson, was added as the second applicant in these proceedings on 3 September 2024. At that time, she was seeking orders in respect of her own time with X and Y. On 23 January 2025, Ms Dawson indicated to the Court that she wanted to withdraw from the proceedings. On behalf of Ms Bacci, it was indicated that restraints would still be sought against Ms Dawson and a notation was made that Ms Dawson was aware of the orders sought against her by Ms Bacci, and that orders may be made in her absence if she did not participate in the proceedings. Ms Dawson filed a Notice of Discontinuance on 24 January 2025. Ms Dawson did not attend the final hearing. There was no evidence before me about why that was the case, although Mr Bacci advised me from the bar table that she was unwell.
The ICL and a finding pursuant to s 68LA(5D)
X’s and Y’s interests in these proceedings were represented by an ICL. Prior to the commencement of the final hearing, I dealt with and dismissed Mr Bacci’s application for the ICL to be discharged. I provide my reasons below.
In addition, by reason of the operation of ss 68LA(5B) and (5D) of the Act, prior to making final orders I need to make a finding as to whether I am satisfied there are exceptional circumstances that justify the ICL not meeting with X and Y and giving them the opportunity to express their views.
The ICL had last met with X and Y via Zoom on 28 June 2024 to explain the interim orders made on 26 June 2024. Prior to this meeting, the ICL had last met with them on 12 July 2022. According to the Case Outline of the ICL filed 2 April 2025, a Zoom conference scheduled for 13 March 2025 between the ICL, X and Y was cancelled after Mr Bacci did not consent to it occurring. Mr Bacci gave evidence that he did not consent because he was not reassured by the ICL that the interview would be approached in the way that Mr Bacci said that it should. An email from Mr Bacci to the ICL dated 10 March 2025 was tendered as part of his case for final orders in which he writes:
While I have noted your comments about the meeting with my private properties, I would like to reiterate that I do not feel comfortable consenting to the meeting without an independent party present to ensure the integrity of the information being captured. This request is made in light of the ongoing concerns regarding your conduct, that I believe is reasonable given the serious issues already raised and the complaints currently under review.
Mr Bacci’s use of the phrase “private properties” (amongst other terms) to refer to X and Y is described in further detail below.
A parent’s consent is not required for an interview between a child or children and the ICL, and Mr Bacci’s cooperation was not required to facilitate it. Nonetheless, the ICL indicated concern, given Mr Bacci’s position, about embroiling X and Y further in the conflict. Presumably, it was also relevant to the ICL’s decision that X’s and Y’s views are not in dispute. That does not answer the question whether there are exceptional circumstances because, as the legislation recognises, it is important not just that children’s and young people’s views are known, but also that they are heard. Nonetheless, pursuant to ss 68LA(5B)(c) and (5D) of the Act, having regard to the matters referred to above, and also having regard to the difficulties being experienced by X in particular, I am satisfied that there are exceptional circumstances which justify the ICL not meeting with X and Y since June 2024 and giving them an opportunity to express their views to the ICL.
Orders sought
Ms Bacci’s position at the final hearing was that she should have sole responsibility for making decisions for X and Y with respect to major long-term issues, that they should live with her and spend no time with Mr Bacci. She also sought various restraints – including against Ms Dawson. At the commencement of the hearing, the ICL’s position was that X and Y should live with Ms Bacci. He reserved his position in relation to time with Mr Bacci. After hearing the evidence, including that of Dr B, the ICL confirmed his position was that X and Y should have no time with Mr Bacci and that various restraints should be ordered. The ICL did not seek restraints against Ms Dawson because it was said there was not sufficient evidence to support them. The ICL did, however, indicate through counsel that he did not oppose such restraints.
Mr Bacci’s ultimate position was contained in a Final Further Amended Initiating Application, which he filed on 15 April 2025, along with an Outline of Case. Some of the orders he sought are not parenting orders and are otherwise not orders I can make. I asked him to clarify his position in relation to decision-making responsibility, but he did not do so. Broadly, his application was that X and Y should live with him and spend time with Ms Bacci in accordance with their views.
PRE-HEARING MATTERS
In the lead-up to the final hearing, Mr Bacci filed the following applications:
(1)On 6 February 2025, Mr Bacci filed an urgent Application in a Proceeding (ultimately sealed on 19 February 2025) in which he sought, amongst other things, the removal of both the ICL and Dr B as single expert on the basis of “breaches of fiduciary duty, fiduciary responsibility and misconduct in office” (“the February Application”). He also sought the removal of X’s and Y’s psychologist, Ms D, as “Independent Children’s Lawyer”, but acknowledged this was an error. I indicated to him that I would hear from him in relation to any final orders he sought in relation to Ms D in final submissions. The February Application was listed for the first day of the hearing and, so far as it concerned the ICL and Dr B, was heard at the commencement of proceedings. I dismissed it. I provide my reasons below.
(2)On 28 February 2025, he filed an Application for Review of the decision not to list the February Application urgently (“the Review Application”). The Review Application was listed before me on the first day of the hearing. Given I was hearing the February Application that day, the Review Application served no purpose and I dismissed it.
(3)On 8 April 2025, Mr Bacci filed an Application in a Proceeding seeking, amongst other things, that X and Y be urgently returned to his care, and that any parenting orders providing for X and Y to reside with Ms Bacci be stayed “pending further investigation and review of appropriate and safe living arrangements” (“the April Application”). The April Application was also listed before me on the first day of the hearing. As I would be in a better position to determine it after I had heard the evidence in the applications for final orders, I dealt with the April Application on the final day of the hearing and dismissed it. My reasons for doing so are the same as my reasons for making the final orders that I have.
(4)Mr Bacci also sent to my Chambers on 26 March 2025, 1 April 2025 and 13 April 2025 emails which were tendered on behalf of the ICL. The first two emails are described as “[f]iduciary Duty Notice in Case SYC2906/2022”, and the latter as “[f]iduciary Duty Notice in constructive trust SYC2906/2022 for the trust meeting, which will be held on the day 14 April 2025”. The emails contain a demand that I give various statements and assurances. The earlier two emails end with the statements that “[a]ll court cases must go under equity jurisdiction to avoid probate fraud and tortfeasors” and “[t]his is my wish, my will and my pleasure to set off this matter to balance the public and the private ledger.” The last one ends with “[y]ou have 72 hours to discharge all the liabilities in this constructive trust SYC2906/2022 as it should be under Equity jurisdiction and that I, Mr Bacci must be compensated for the extreme spiritual harm, which was caused by the unlawful due process.” Needless to say, these do not constitute proper applications to the Court, and the legal language in which they are dressed is nonsensical.
(5)During final submissions, Mr Bacci also made an oral application that I make the interim orders sought by him in the April Application and that “I will motion the court that this matter be conveyed to the correct jurisdiction. It’s the equity jurisdiction, and we if go to the Supreme Court, and pursuant to the provisions of the Cross Vesting Act of 1987.” Again, this was an application grounded in nonsensical legal terms, and was an oral application made without leave.
The February Application
On the first day of the final hearing, and before hearing any other evidence, I considered and dismissed the February Application insofar as it concerned the ICL and Dr B. These are my reasons for doing so.
The February Application was supported by an affidavit of Mr Bacci filed 6 February 2025. I received paragraphs [19]-[31] of that affidavit into evidence in relation to the application to discharge the ICL and paragraphs [11]-[18] into evidence in relation to the application to discharge Dr B. I also received some of the exhibits to that affidavit into evidence. In respect of both applications, I received the whole of the affidavit filed 8 April 2025. Mr Bacci also tendered various documents. Those documents included: a bundle of correspondence between Mr Bacci and the ICL in February 2024 and March 2025; documents from X’s school and from Child and Youth Mental Health Services (“CYMHS”) which detail some of the difficulties X has been having; the report of X’s and Y’s last supervised visit with Mr Bacci prior to the final hearing, and various other documents. In relation to the application to discharge Dr B, I also received the two Family Reports into evidence.
Reasons for decision not to discharge the ICL
The ICL opposed the application to dismiss him, but did not otherwise participate in the hearing of the application. On behalf of Ms Bacci, the application was opposed and very brief submissions were made.
I provided Mr Bacci with a copy of the decision in Fisher & Fisher [2021] FamCA 236 (“Fisher”), and a copy of the amended s 68LA of the Act. In Fisher at [18]-[20], Williams J usefully summarised the case law in this area, as follows:
18. In Dickens & Dickens [2016] FamCA 115, Justice Watts referred to the relevant legal principles applicable to applications for removal of an Independent Children’s Lawyer.
19. At paragraphs [46] – [53] His Honour said as follows:
Legal principles in respect of the removal of an Independent Children’s Lawyer
[46] In Lloyd & Lloyd and Child Representative (2000) FLC 93-045, Holden CJ discussed the court’s power to discharge an order for separate representation and the role of the separate representative. His Honour said at [11]:
11. Without attempting to be exhaustive, there are certain circumstances, which, in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances are:
(i) if there is evidence that the separate representative had, in any way, acted contrary to the children’s interests;
(ii) if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(iii) if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(iv) if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.
[47] At [30] of his Reasons, Holden CJ sets out what he describes as “a number of very good reasons” why the court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. In that discussion, His Honour says:
30(ii) The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean that he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step. It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative.
[48] In Knibbs & Knibbs [2009] FamCA 840, Murphy J referred to the last sentence and said:
[40] With the greatest respect to His Honour I do not myself necessarily agree with the last of the statements there made that it is only in cases of actual, as opposed to perceived, impartiality that “consideration” ought be given to removing a child representative. However, the matters otherwise referred to by His Honour are in my view, with great respect, all extremely important and are applicable to the facts of this case.
[49] Consequently, there is disagreement between Holden CJ and Murphy J as to whether or not the test to discharge an order for the appointment of an Independent Children’s Lawyer is similar to the test for the disqualification of a judge as earlier set out in these reasons. That is, whether or not the test is not only actual bias but also perceived bias.
[50] If it is perceived bias, is it the reasonable apprehension of a fair-minded lay observer that is the test or is it the perception of the father?
[51] In T & L (2000) FLC 93-056, Chisholm J, in the unusual facts of that case, made an order restraining the child’s representative from further representing the children in the proceedings. His Honour said:
The critical question … is whether a person in the father’s position might reasonably believe that the child’s representative would not be impartial, but would be prejudiced against the father …
[52] The test that I shall apply is that the father needs to establish that the Independent Children’s Lawyer actually lacks impartiality or alternatively, a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer lacks impartiality. That test of perceived lack of impartiality however, is to be judged having regard to the role and duties imposed upon the Independent Children’s Lawyer by s 68LA of the Act. That “rubric” is discussed by Murphy J at [41]–[61] of Knibbs where His Honour sets out, amongst other things, the duty of the Independent Children’s Lawyer to argue firmly and fearlessly for what the Independent Children’s Lawyer contends are findings or results consistent with the best interests of particular children and describes the precarious position an Independent Children’s Lawyer is in when fulfilling that role because it may be that the Independent Children’s Lawyer is required to challenge the position of one or other of the parents.
[53] It is usually the case that the Independent Children’s Lawyer will not announce their position in relation to competing parenting orders until they have heard all the evidence, but that is not necessarily the case, and in certain cases the Independent Children’s Lawyer will form a preliminary view at the commencement of the final stage of the hearing. It should be observed that Independent Children’s Lawyers on occasions reach a concluded view about what orders should be made based on the evidence that they have available at the time. In respect of interlocutory matters however, there is a duty on the Independent Children’s Lawyer to form a view in relation to particular interlocutory matters. That does not mean that the Independent Children’s Lawyer’s independence to continue to act in the best interests of the children as their advocate in the final proceedings is fatally compromised in a way that means that the parent who did not like the position they took on a particular interlocutory matter can have them removed.
20. Paragraph 10 of Horner & Horner [2018] FamCA 487, His Honour Justice Tree, distilled the principles from the relevant authorities as follows:
[10] A number of authorities have considered the removal of an Independent Children’s Lawyer, and specifically, the circumstances which may justify such a course. From those, the following points may be discerned:
•It is not inconsistent with the independent and professional discharge of an Independent Children’s Lawyer’s obligations for her or him to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by the court;
•Whilst in a unique position, the Independent Children’s Lawyer owes the same professional obligations to the court as does any licenced legal practitioner;
•On occasion, the Independent Children’s Lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings;
•Inevitably the role of the Independent Children’s Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult;
•It is not appropriate for a litigant to endeavour to micro-manage the Independent Children’s Lawyer, or critique every step that they take;
•It is certainly not the case that, even if an Independent Children’s Lawyer does make a mistake, the court will necessarily accede to an application to have them discharged. Significantly more than that is required;
•It is inevitable that the high standards of competence which the court expects of Independent Children’s Lawyers are not always met. Independent Children’s Lawyers are, like anybody, liable to human frailty;
•A court should be slow to discharge an Independent Children’s Lawyer on the basis of largely unsubstantiated complaints of one of the parties.
Section 68LA of the Act now relevantly provides as follows:
68LA Role of independent children’s lawyer
When section applies
(1)This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.
General nature of role of independent children’s lawyer
(2) The independent children’s lawyer must:
(a) form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and
(b) act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.
(3) The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
(4) The independent children’s lawyer:
(a) is not the child’s legal representative; and
(b) is not obliged to act on the child’s instructions in relation to the proceedings.
Specific duties of independent children’s lawyer
(5) The independent children’s lawyer must:
(a) act impartially in dealings with the parties to the proceedings; and
(b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c) if a report or other document that relates to the child is to be used in the proceedings:
(i) analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii) ensure that those matters are properly drawn to the court’s attention; and
(d) endeavour to minimise the trauma to the child associated with the proceedings; and
(e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
Requirement to meet with the child and give the child the opportunity to express their views
(5A) Subject to subsection (5B), the independent children’s lawyer must perform the following duties (not necessarily at the same time):
(a) meet with the child;
(b) provide the child with an opportunity to express any views in relation to the matters to which the proceedings relate.
Note: A person cannot require a child to express the child’s views in relation to any matter (see section 60CE).
(5AA) The independent children’s lawyer has discretion in relation to the following matters (subject to any order or direction of the court with respect to the matter, for example under paragraph 68L(2)(b) or paragraph (5D)(b) of this section):
(a) when, how often and how meetings with the child take place;
(b) when, how often and how the child is provided with an opportunity to express views.
(5B) The independent children’s lawyer is not required to perform a duty if:
(a) the child is under 5 years of age; or
(b) the child does not want to meet with the independent children’s lawyer, or express their views (as the case requires); or
(c) there are exceptional circumstances that justify not performing the duty.
(5C) Without limiting paragraph (5B)(c), exceptional circumstances for the purposes of that paragraph include that performing the duty, would:
(a) expose the child to a risk of physical or psychological harm that cannot be safely managed; or
(b) have a significant adverse effect on the wellbeing of the child.
(5D) If the independent children’s lawyer proposes not to perform a duty because of paragraph (5B)(c), the court must do the following before making final orders:
(a) determine whether it is satisfied that exceptional circumstances exist that justify not performing the duty;
(b) if the court determines that those circumstances do not exist—make an order requiring the independent children’s lawyer to meet with the child or provide the child with an opportunity to express their views (as the case requires).
In summary, Mr Bacci’s application to discharge the ICL appears to be based on the grounds that:
(1)the ICL has not acted consistently with X’s and Y’s best interests;
(2)the ICL has not engaged appropriately with X and Y;
(3)Despite the children’s requests for engagement, the ICL has not met with X and Y, or at least not recently, and for the purpose of them expressing views;
(4)the ICL has acted coercively and inappropriately in relation to Mr Bacci;
(5)the ICL is biased against Mr Bacci;
(6)the ICL lacks impartiality and independence and has colluded with other professionals;
(7)the ICL coerced the paternal grandmother into participating in the case.
In support of these submissions, there was very little by way of evidence to which I could attach any weight. Rather, the affidavit material in support was largely statements or assertions such as (as in original):
(1)“That the Independent Children’s Lawyer (ICL), Brian Hassan Samuel, has failed to present, document, or defend the progeny’s clearly stated wishes and safety concerns, in breach of both statutory obligation and fiduciary responsibility under the Children and Young Persons (Care and Protection) Act 1998 (NSW)”;
(2)“That the refusal to act upon direct disclosures of suicidal idealisation, abuse, and emotional alienation constitutes gross misfeasance and leaves Mr Samuel personally and professionally liable under Common Law, Equity, and natural authority.”
(3)“That the ICL has continuously failed in his statutory obligations and ICL Guidelines (2023) refusing [sic] direct engagement with the progeny and relying [sic] solely on prejudiced third-party reports.”
(4)“Brian Hassan Samuel is held personally accountable for the trauma inflicted through suppression of truth, obstruction of due process, and alliance with agents known for misconduct and collusion.”
(5)“That these three – [Dr B], [Dr E], and [Ms D] – acted in concert under the facilitation of Brian Samuel, forming a closed circuit of collusion that excluded and silenced the voices of the progeny.”
(6)“That no communication from the ICL had reached the progeny despite repeated attempts, reinforcing a systemic pattern of silencing their voices.”
(7)“That the ICL’s only interaction was to relay orders, without consultation or assessment, during a meeting where the mother was reported to be present off-camera, which the progeny found intimidating and manipulative.”
(8)“That further coercive medical testing was requested by the ICL without informed consent, raising serious ethical breaches.”
(9)“That the ICL’s actions constitute a violation of Article 12 of the UNCRC and breach [sic] both the Bias Rule and Hearing Rule in Australian natural justice.”
(10)“That the individuals Brian Samuel, [Dr B], [Ms D], and [Dr E] have each played an active role in facilitating this harm.”
(11)“That these parties acted with knowledge of the consequences, in clear breach of their fiduciary duties and obligations to act in the best interests of the progeny.”
Some of the submissions made suggest that Mr Bacci attributes to the ICL a decision-making authority which the ICL does not have. The ICL does not make decisions about parenting arrangements, cannot decide to withhold children from a parent, and cannot compel a person to become a party to proceedings. The ICL is a legal representative of the children’s interests. Decisions which have been made about the parenting arrangements have been made by the Court, taking account of the evidence and on hearing submissions from the parties and the ICL.
The fact that there is evidence in the tendered documents that X, in particular, is experiencing difficulties while in his mother’s care, and that X and Y have expressed strong views in favour of living with their father does not necessarily mean that it is in their best interests to live with him and that the ICL should take that position. An ICL is not a child’s legal representative, and is not obliged to act on the child’s instructions (s 68LA(4)). The ICL is obliged to consider all of the evidence, form an independent view about what is in the children’s best interests and act in the proceedings in accordance with that view (s 68LA(2)). In relation to the application to discharge the ICL, there is no evidence before me which persuades me that he has not complied with these obligations. There was a cryptic email sent by the ICL to the parties on 30 August 2024, but an instance of poor communication does not support a submission of unprofessional conduct. As the case law makes clear, significantly more than a mistake is required to ground a discharge.
An ICL would ordinarily meet with the children, and in that meeting give them the opportunity to express a view. This has not occurred – at least not since 2022. There was a meeting in July 2024, but that was to allow the ICL to explain the interim orders to X and Y.
The emails tendered reveal a request on 14 February 2024 from Mr Bacci’s then solicitor for the ICL to meet with X and Y. That is responded to in an appropriate way by the ICL who is not, of course, required to do something just because a party asks them to and is required to exercise their own professional judgment. Mr Bacci tendered correspondence from which I infer that the ICL was to meet with the children in March 2025, but that Mr Bacci required there be an independent person present and refused consent when such an arrangement was not facilitated. There is no dispute about what X’s and Y’s views are, and they had been given the opportunity to express those views to Dr B. While not all ICLs would have made the same decision, it was a reasonable position for the ICL not to meet with X and Y, and his failure to do so is not a basis for discharge.
Mr Bacci raised that Y and X had attempted to contact the ICL and had received no response. In a tendered message, X apparently writes to the ICL (as original):
I am struggling a lot at the moment because i don’t feel safe living with my mum because me and my sister are suspicious that she has been drugging our food so we don’t eat as much anymore when we are with our mum and she takes our money that we use to buy our own food that we cook, so it feels like she is trying to force us to eat her food.
The ICL has discretion as to how to perform their role, and I am not satisfied on the evidence before me that there was anything inappropriate in the ICL’s communication, or lack of communication, with X and Y. It is difficult to know what the ICL could have usefully said or done in response to X saying he suspects his mother is drugging his food. This put the ICL in a difficult position and it is understandable that the ICL would not have responded – particularly in a context where he knew that counselling and other assistance was being provided.
To the extent that there is a complaint that the ICL did not “engage with the father”, again this misunderstands the role of an ICL, who, in order to maintain independence, would generally not engage in any substantive way with parents (except perhaps in relation to settlement discussions when a party is self-represented).
The ICL was entitled to request Mr Bacci to engage in drug testing and there were orders made to that effect on 19 July 2022, and there is no evidence that there was anything improper in relation to the requests that he made.
There is no evidence on which I could conclude that the ICL actually lacks impartiality nor that a fair-minded lay observer might reasonably apprehend that the ICL lacks impartiality (to apply the test in Knibbs & Knibbs [2009] FamCA 840), or even might lack impartiality. There is evidence to the contrary – for example, at the commencement of the final hearing the ICL had adopted the recommendation of Dr B that the X and Y live with Ms Bacci, but had not yet taken a position in relation to time with Mr Bacci. Appropriately, he was waiting for the conclusion of the evidence before he formed or expressed a view in relation to that matter.
Similarly, there is no evidence that the ICL has acted inappropriately in relation to Ms Dawson.
There is no evidence whatsoever which would support a submission that the ICL has colluded with anyone, failed to act independently, or engaged in “gross misfeasance.” These are extremely serious allegations to make, and the fact that Mr Bacci was prepared to make them without any evidentiary basis at all, is troubling.
Reasons for decision not to discharge of Dr B
In relation to the application to discharge Dr B, while I am aware of the decision of Wilson J in Toma & Doyle [2022] FedCFamC1F 215, and with respect to his Honour, I am satisfied that I have the power to discharge a single expert. Where I am asked to discharge the single expert just prior to a final hearing and when there is no opportunity to obtain a report from a further single expert, I would only do so if there was some evidence that persuaded me that Dr B had not complied with ch 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) or his other professional obligations, or if the relevant report did not contain any evidence to which I could attach any weight. Any other issues can be dealt with in the process of cross examination by which the evidence is tested.
There is no evidence which satisfies me that Dr B has failed to comply with the Rules, and his expert reports contain evidence which is likely to be of value to me in making my decisions. There is simply no evidence to support submissions alleging that Dr B has engaged in collusion, been biased, or failed to comply with professional guidelines, or done anything else inappropriate. Again, it is troubling that Mr Bacci would make such serious allegations without evidence. In relation to the allegation of bias, I note that Dr B has now provided two reports in these proceedings. In the first report, completed in 2022, he was recommending parenting arrangements which would allow X and Y to have a meaningful relationship with both parents, and the parents subsequently agreed to commence unsupervised and overnight time for X and Y with Mr Bacci. It is only in his updating report from 2024 that he recommended the children spend only professionally supervised time with their father.
Despite having dismissed the February Application on the first day of the hearing, during submissions on the final day Mr Bacci made an oral application that “[Dr B] himself as the individual and the RICO participant slash third party interloper that is colluding with these other parties be struck off. And all of his evidence also be struck off”. This request was followed by Mr Bacci’s contention that “I’ve dismissed him on many occasions, yet you have not actioned that. So it’s just on the record once again. I think it has definitely been about five or six times I’ve asked”. He later added to this oral application: “another reason to strike [Dr B’s] records off, I believe there’s a third party interloper pollution that needs to be looked at there. I’m sure the RICO case will consider”. I had already dismissed the application to discharge Dr B for the reasons provided above, and there was no further evidence of relevance to support the application at the conclusion of the hearing. Mr Bacci did not seek, nor did I grant, leave for the further oral application to be made.
EVIDENCE AND DOCUMENTS RELIED UPON IN APPLICATION FOR FINAL ORDERS
With respect to the hearing of the application for final parenting orders, Mr Bacci told me on the second day of the hearing (and later confirmed) that he relied on the following documents:
(1)An affidavit of his partner Ms F filed 26 August 2024;
(2)An affidavit of Mr G, his mother’s partner, filed 4 November 2024;
(3)His affidavit filed 4 November 2024;
(4)His affidavit filed 6 February 2025;
(5)His affidavit filed 21 February 2025; and
(6)His affidavit filed 8 April 2025.
I received those affidavits into evidence without their annexures, which I made clear were to be tendered separately. Mr Bacci tendered some documents during the hearing. I have read and considered all of that material.
Both counsel for Ms Bacci and counsel for the ICL indicated that they did not need to cross-examine Ms F or Mr G. Ms Dawson was unavailable for cross-examination and so I did not give Mr Bacci leave to rely on her affidavit filed 26 August 2024.
During the third day of proceedings, Mr Bacci also made an oral application seeking that his children, in particular X, be brought to the Court to give evidence. I refused this application. I refer to this application and the concerns which it gives me about Mr Bacci’s parenting capacity further below.
On the final day of the proceedings, I received written submissions from Mr Bacci.
Ms Bacci indicated that she relied upon her affidavits filed 19 August 2024 and 21 February 2025, which I received into evidence without their annexures. Documents were tendered in her case. I have read and considered all of that material. She had filed an affidavit of her mother in August 2024, but that was not relied upon.
The ICL filed a Case Outline on 2 April 2025 and subsequently an amended Minute of Orders sought.
The single expert in this matter is Dr B. Dr B has prepared two reports in this matter – one dated 9 November 2022 and a supplementary report dated 19 July 2024. He interviewed both parents, X and Y and various other people for the purposes of both reports. He has been able to take a longitudinal view of the matter. Although he has not interviewed the parties, X or Y since 16 July 2024, he has read updating material in the matter, including the substantial amount of material produced under subpoena and the report of the time that X and Y spent with their father on 5 April 2025. In his first report, Dr B had recommended a shared parenting arrangement. In his second report, he had recommended X and Y live with their mother and spend only supervised time with their father. In oral evidence, he made a clear recommendation that, notwithstanding X’s and Y’s views, they live with their mother, spend no time with their father, and that the restraints sought by the mother (including in respect of Ms Dawson) be made. Dr B was an impressive witness, and I have confidence in his evidence. I reject Mr Bacci’s submissions to the contrary.
I received into evidence the Single Expert Report of Dr B dated 9 November 2022, as well as Dr B’s second Single Expert Report dated 19 July 2024.
ISSUES
With respect to the substantive parenting matter, the decisions I need to make are as follows:
(1)Whether X and Y should continue to live with Ms Bacci, or should move to live with Mr Bacci;
(2)What, if any, time X and Y should spend with the parent who they are not living with and on what conditions;
(3)What, if any, restraints should be made against the parents and/or the paternal grandmother.
Neither parent sought that there be an order for shared parental responsibility and decision-making and in those circumstances it was likely that an order for sole responsibility would be made in favour of the parent who X and Y live with.
The main issues informing those decisions are:
(1)What impact, if any, Y’s and X’s strongly-held views in favour of living with their father should have on my decision, and particularly noting that X is now 14;
(2)What parenting arrangements and restraints are more likely to result in X’s and Y’s safety from harm and their needs being met, having regard to the parents’ respective parenting capacities and Mr Bacci’s mental health and behaviour.
Previously, issues about Mr Bacci’s alleged use of family violence and alleged drug use were front and centre in the proceedings, and the Factual Findings sought by Ms Bacci by way a document filed 8 April 2025 including that “[t]he children are at an unacceptable risk of harm in the father’s care due to … [t]he father perpetrating physical violence on the mother and X” and “the father’s extensive history of excess drug and alcohol use.”
In final submissions, it was conceded on behalf of Ms Bacci that I would not be able to make any findings about the use of family violence, and it was not necessary for me to do so. That concession was appropriate given that the allegations were denied by Mr Bacci, neither parent was cross-examined in any detail about those matters and there were no documents tendered which would assist in relation to that aspect of the case. Further, Dr B’s recommendations did not turn on findings of family violence or drug or alcohol use, and so the other matters which informed his recommendations were the key issues I needed to decide.
Given the state of the evidence, I am also not able to make a finding about whether Ms Bacci has made false or exaggerated allegations of family violence against Mr Bacci, as he has alleged.
While Ms Bacci has previously raised issues of Mr Bacci’s alcohol and drug use, no findings were sought that X or Y were at risk because of any such use, and Dr B opined that Mr Bacci’s positive test results for amphetamines were likely consistent with him having taken prescription medication for Attention Deficit Hyperactive Disorder (“ADHD”). On a number of occasions, Mr Bacci failed to take drug tests as requested, but I am not prepared to infer that they would have shown excessive alcohol or illicit drug use, given his evidence that cost and communication difficulties were at play.
For the reasons set out below, I make orders broadly in line with those sought by the ICL and Ms Bacci. I also make the orders sought by Ms Bacci for restraints on Ms Dawson.
TWO KEY SETS OF EVENTS
Events surrounding the re-imposition of supervision in mid-2024 and its aftermath
The events in mid-2024 which led to the re-imposition of a requirement for supervision of X’s and Y’s time with Mr Bacci require some consideration and findings.
Ms Bacci told Dr B and gave evidence, which I accept, that X’s and Y’s behaviour deteriorated after they started spending overnight time with their father in October 2023. This included using foul language, name-calling, defiant behaviour and some physical violence. I also accept her evidence that, in late 2023 and early 2024, Mr Bacci and the children’s paternal grandmother engaged in behaviour which undermined her parenting, including encouraging X and Y to spend time with them outside of the times provided for by the Court orders, Mr Bacci playing online games with X late into the evening and providing X and Y with electronic devices and access to said devices, notwithstanding Ms Bacci had asked him not to do so, and Mr Bacci calling Y’s school on the morning of a Y’s two-day school excursion, to inform them that he did not permit her to attend. Most troublingly, Mr Bacci provided the children with a lockbox to use to keep their possessions from their mother and maternal grandmother.
On 19 April 2024, Mr Bacci sent Ms Bacci a serious of messages accusing her of “coaching … the kids”, “manipulation of the legal system” and describing the children’s “prison style lifestyle at home” and of having “tracking utilities” on them.
X and Y were in the overnight care of Mr Bacci on 4 May 2024. On 6 May 2024, Mr Bacci took the children to live with him. He has given evidence and told Dr B that he did so because X and Y asked him to, wanted to live with him and had raised various concerns about their mother’s care of them and because of the failure to progress time with him. He has also given evidence that he had obtained legal advice. To Dr B, but not directly to the Court, he stated “that he understood that he had set things back”, that he had “’lived with the repercussions’”, “understood the dire consequences for himself and the children” and “was motivated to repair this.” Nonetheless, he also told Dr B that he “considered the mother’s response towards the children punitive.”
After attempting to negotiate the return of X and Y to her care, Ms Bacci filed an urgent Application in a Proceeding on 9 May 2024, which was heard on 22 May 2024. Amongst other things, orders were made for their return, and for the suspension of their time and communication with Mr Bacci for three weeks. Mr Bacci returned X and Y on 22 May. There was a verbal altercation between the parents in front of X and Y on that occasion. On the same night, Mr Bacci called police to conduct a welfare check.
X’s and Y’s behaviour escalated from the time of their return to their mother’s care and included what Dr B has described as escalating deceptive, defiant and oppositional behaviour and behaviour which was disrespectful towards her. By the time of the interviews with Dr B in July 2024 that behaviour had included swearing, name-calling (including, repeatedly, “fat bitch”) and some physical violence. It had also included putting food in her bed, throwing food around the house, and refusing to participate in activities which they would previously enjoy. Y and X were also refusing to drink water other than a particular type of bottled water, refusing to eat certain foods or foods bought from supermarkets other than Harris Farm, and, in Y’s case, refusing medication. Just prior to the interviews with Dr B, Y suffered a compound fracture to her arm, and refused to take pain medication offered by ambulance officers until she had spoken with her father.
Ms Dawson continued to contact X and Y, notwithstanding the order suspending Mr Bacci’s communication. This included a series of messages in mid-June 2024 from Ms Dawson to Y, who had told her grandmother that she and X were going to see their therapist:
You must call me before you go to see her. You’ve got to be strong, you’re ruining everything to live with dad. You’ve got to be very direct about how you feel about mum and grandma, otherwise you’ll be stuck with them for good. Make sure you tell [X] this and delete these messages. You must call us.
As [sic] as possible, before the appointment. If you don’t it’s going to go really badly. Just the 2 of you get away from her. If you have to say anything tell her how manipulative your mother has been, just remember she’s manipulated [Ms D] as well. This is your only chance to be heard, you’re being manipulated and you have to have a voice. Delete.
Call me as soon as possible you have to speak up this will go badly in court if you don’t speak up. Mum is manipulating you with the promise of gifts. You should say you don’t want new phones/iPads, it’s just her way of controlling you & keeping you zoned out. Don’t you realise if this goes badly you may never see us again. Why isn’t [X] making the effort to call, I can see your mother thinks. She’s won. Just call me please & delete these messages.
Have you told [X] [i]f you speak to her you’ve got to be dropping bombs about your actual thoughts, if you’re going to speak up yell if you have to, just remember this is probably the last time before court. Mum thinks she’s won. I’m really disappointed we couldn’t speak, don’t let them put words in your mouth. Dads [sic] been working so hard to get things ready for you, he’ll be really upset with you both if this goes badly. Did you tell [X].
On 19 June 2024, X and Y did not return to Ms Bacci’s care and a recovery order which had been made on 22 May 2024 and remained on file issued. The police found them at Ms Dawson’s house and they then returned home.
On 26 June 2024, there was a further interim hearing and orders were made discharging the “spend time” orders, making orders for supervised time and restraining Mr Bacci from communicating with X and Y and from permitting them to be in the presence of Ms Dawson.
Ms Dawson admitted to Dr B that she had given X and Y keys to her house (which Y told him she had secreted in her clothes), and money, and had been in “constant contact” with X and Y and that this had been a secret from their mother. She admitted that she was aware that they would tell their mother they were going for a bike ride when they went to her house.
Concerningly, Ms Dawson did not reassure X and Y that their mother was not lacing their food. She is recorded as having said to X and Y in the presence of Dr B that “I don’t know if there’s something in your food. You need to speak to mother about it.” Dr B opined that Ms Dawson “had been receptive to the children sharing their concerns about food from the mother.” Ms Dawson also expressed concern that X and Y’s therapist was “on the mother’s side.”
I accept Dr B’s evidence about this time that Mr Bacci and Ms Dawson lacked the capacity to respond to X’s and Y’s escalating behaviour “in a reflective and containing manner”, and that their “actions had amplified the children’s distress, frustration and oppositionality given their validation of their expressed experience.”
Mr Bacci conceded that, notwithstanding the restraints that are in place, he has had some contact and communication with X and Y over social media. His evidence about what social media sites he had used was unclear.
I am satisfied that Mr Bacci’s and Ms Dawson’s behaviour has been undermining of Ms Bacci and her parenting, and that there were breaches of interim orders restraining communication. Based on what X and Y told Dr B about their mother lying, and catching her out lying, I am satisfied that Mr Bacci has told X and Y about matters which have been raised in these proceedings and that they have (at least) not been discouraged by him from participating in assessing “the truth”.
I am satisfied on the evidence that Ms Bacci has made considerable efforts to manage X’s and Y’s behaviour, including taking them away for short holidays and to see family, engaging them in activities, providing them with bottled water, and shopping for and cooking things that they would eat. At times, they have engaged with her and in these activities, but they have often reverted to their poor behaviour. There was a marked improvement in their behaviour from July 2024.
I accept Ms Bacci’s evidence that, while there are ongoing difficulties and recent incidents, X’s and Y’s behaviour and attitude towards her has improved since their time with their father has been supervised. She deposes that X and Y are now eating homecooked meals prepared by her, eating snacks from Woolworths/Coles (not just Harris Farm) and are drinking filtered water. They have both stopped being physically aggressive towards her and are “more settled than they once were”, although there are still some difficulties.
The 5 April 2025 supervised visit
A key piece of evidence which had caused Dr B to change his recommendation from one for professionally supervised time to no time was the “Visit Report” for 5 April 2025 (the “Visit Report”). Notwithstanding supervision, and redirection by the supervisor, on that occasion Mr Bacci raised the upcoming final hearing with X and Y, including by saying that he had been “getting ready for Court”, asked the supervisor if certain matters could be included in the report, and told X and Y that this was the last visit between them before he went to Court. Most troublingly, the following interaction is recorded as having occurred:
[Mr Bacci] expressed the importance of them speaking up about what they wanted, saying they aren’t heard and he is doing everything he can to help them. They chatted about not being able to speak with their ICL and [Mr Bacci] said he ([Mr Bacci]) was always perceived as a dangerous person, saying they were living with their mother who they hated.
The supervisor then asked them all to settle and pointed out the inappropriateness of the situation. The following is then recorded: “[Mr Bacci] said he didn’t care anymore as it had been years of them suffering and being punished.” X and Y then started talking about various complaints that they had in the care of the mother and about their lack of contact with the ICL, with which Mr Bacci engaged. The supervisor then sought support from her manager. Even after the supervisor had asked Mr Bacci to change the focus of the visit, the following occurred:
[X] said he had one last thing to ask, asking [Mr Bacci] if they were going to be listened to and have their voice heard to what they want. [Mr Bacci] said they would and reminded them it was so important to be vocal about what they want as they had rights. The children nodded.
In relation to the Visit Report, Dr B opined that it showed:
… very clearly the limitations of even supervised contact. The upshot of, or outcome of, the visit was a notification to DCJ … which is potentially problematic for all parties. The father demonstrates his inability to restrain himself from communicating his strongly held views to the children. He demonstrates his insistence that the children should understand that they need to be listed to and that their voices should be heard with regard to what they wanted. And again, [Mr Bacci] said they would – and reminded them it was so important to be vocal about what they want, as they had rights. And the children nodded in response. Now, my concern is that there’s every likelihood that such communication from the father will continue in the context of supervised contact. And the most striking thing about this is that the father knew that this- that his statements were being recorded. He knew that this would be produced.
I accept this evidence of Dr B. Mr Bacci in fact tendered the Visit Report in support of his case both for interim and final orders. That demonstrates that he has no insight that he acted inappropriately on that occasion. I refer to another aspect of that visit – namely X telling Mr Bacci that he had threatened suicide to his mother – below.
RELEVANT LAW
When making parenting orders, the best interests of X and Y are the paramount consideration. In working out what is in their best interests, I am required to have regard to the matters in s 60CC of the Act. As neither X nor Y are Aboriginal or Torres Strait Islander children, the matters that apply only to such children are not extracted below.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) …
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
I am also required to apply s 60CG of the Act which provides:
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Injunctions pursuant to s 68B of the Act are not parenting orders, but I may make such an order or grant such an injunction as I consider appropriate for the welfare of a child, including an order or injunction for the personal protection of a child or a parent of a child.
Y’s and X’s views
It is not in dispute that Y and X are expressing strong views that they want to live with their father, are critical of the care provided to them by their mother and maternal grandmother and have expressed unhappiness living with them. Those views have changed from the ones they expressed at the time of the first Family Report in 2022, when both wished to remain living with their mother and spend more time with their father, and X expressed some caution about spending overnight time with his father.
The following are some key aspects of the evidence in relation to their views:
(1)To Dr B in July 2024, X expressed his dislike of living with his mother and maternal grandmother and said that he did not wish to return to Ms Bacci’s care in May 2024 and had been very unhappy on his return. He said that he had not liked the reduction to fortnightly contact with his father and expressed the strong view that he wanted to live in Suburb H with his father.
(2)At the time of his return to his mother’s care in May 2024, he wrote on a wall about his extreme negative feelings, including “I feel traped [sic]!”, “I would have stayed if I liked it here!” and “you had to force me to live in this HELL!”.
(3)X also contacted the Kids Helpline on 28 May 2024 and made his wish to return to live with his dad plain. Subsequently, both X and Y have contacted the Kids Helpline.
(4)X has also recorded his views in a journal, some pages of which were tendered in Mr Bacci’s case.
(5)To Dr B in 2024, Y described living with her mother and maternal grandmother as “’not the worst, but we definitely want to live with Dad. We feel safer. We like the area there on the beaches. It’s a better environment. We can trust Dad more.” She was described by Dr B as “clear in her wish to live with her dad and not with her mum and maternal grandmother”. She said she wanted either equal time or full-time with Mr Bacci.
(6)On 4 September 2024, Mr Bacci’s school psychologist Ms J wrote to a social worker with CYMHS that X “ … reported he has been feeling really scared about the outcome from his parents [sic] court case. The worst outcome for him would be not being allowed contact with his dad. He does not know how he would cope if this were to be the outcome.”
(7)In various other documents in evidence – including in the report of X’s and Y’s last supervised visit with Mr Bacci prior to the final hearing on 5 April 2025 – they have expressed that they wish to live with Mr Bacci.
(8)Ms F (Mr Bacci’s partner) gave unchallenged evidence that on more than one occasion, X and Y had spoken to her about “their feelings of discomfort and mistrust” towards Ms Bacci, and that such conversations had not been prompted by Ms F. She deposed that disclosures by X and Y included that Ms Bacci had told their paternal grandfather a “fabricated” story about Mr Bacci, that they regarded Ms Bacci’s house as a “’prison’” due to the presence of cameras, that they experienced disrupted sleep whilst at Ms Bacci’s house due to fears their mother would enter their bedrooms and remove personal belongings and that they had taped their bedroom doors to prevent this, and that they hardly communicate with Ms Bacci because she is “non-responsive” and focused on her iPad.
(9)Mr G gave unchallenged evidence that from around mid-2023, X and Y began having issues living with Ms Bacci and their maternal grandmother, on the basis that “they were tired of the constant lies and the negative portrayal” of Mr Bacci in the maternal household. He also recalled an incident in June 2024 when, at a time when X’s and Y’s whereabouts were unknown and the police had become involved in locating them, X contacted Ms Dawson and advised her that he and Y “’had enough, mum told us she’s taking dad and nanna back to court to have access to us taken away’”.
X’s and Y’s views about spending time with Ms Bacci are not clear. To Dr B in 2024 X said that “[t]hey were willing to see her every now and then.” Mr Bacci gave evidence that “[X] and [Y] clearly and unequivocally stated they ‘never want to stay with Mum again’, describing their current living situation as ‘a prison’”.
It goes almost without saying that the views of young people aged 11 and 14 must be taken very seriously in determining what parenting orders are in their best interests. In part this is because there may be difficulties in relation to compliance with orders which are made against the views of young people of these ages. Dr B gave evidence that X and Y would ‘”vote with their feet’ should this be possible.” When I asked Dr B about what is likely to happen when X becomes aware that I have made orders that he is to live with his mother and spend no time with his father, Dr B opined:
Well I think it is likely that he will be very angry, very oppositional, and there is a potential for pervasive refusal, which is very concerning. And it is possible that on the first available opportunity…that he might fight with his feet and leave … that’s, obviously, a very concerning outcome for [X], and it is possible that [Y] might follow in aspects of her behaviour. And so there is a potentially catastrophic outcome for the children under such circumstances.
Mr Bacci’s submissions focused very significantly on what he said was the need to give effect to X’s and Y’s views, notwithstanding that in recent times he has started to refer to X and Y as his “properties” and “progeny” or “progenies”. Dr B gave evidence that he was concerned that Mr Bacci viewed X and Y as his progeny and his personal property “rather than as independent children.” Asked about his use of this terminology by counsel for the ICL, Mr Bacci could not see any inconsistency between that language and a desire to give effect to the X’s and Y’s views. Mr Bacci said that he had told X and Y at a supervised visit that he had started to use those terms and had made light of it. He did not accept that they would be confused by such terminology. He was not able to explain in any coherent fashion why he has started using these terms.
The weight that should be attached to X’s and Y’s views must be informed by evidence about the wisdom of other decisions which they are making. As set out above, both have been behaving in ways which are highly disrespectful towards their mother and maternal grandmother and otherwise inappropriate and/or concerning. X told Dr B in July 2024 that he was not attending school “because I want mum to notice that I am not happy. I want to get Mum to listen.” Y said similar things to Dr B. Both X and Y were open with Dr B that they were using that behaviour to try to influence the outcome of the proceedings – although plainly X’s mental health (discussed further below) is also likely to be contributing to his poor school attendance and other issues of concern. Tendered by Mr Bacci was a note produced by the school psychologist to CYMHS on 30 September 2024, in which she records:
I did some motivational interviewing with [X] around medication, we discussed concerns around side effects etc. At the conclusion of this, it became apparent to me that [X] has a reluctance to appear to be doing better – as he believes his current state will allow him to get back to his father. I did some challenging around these ideas, and [X] discussed how his current behaviours have been tough on him as well, but every day he convinces himself to “do it for one more day”.
Also relevant is the fact that X and Y have expressed views which are plainly without a rational basis, including that their mother had tampered with or laced their food. Both X and Y expressed these views to Dr B, and they were also expressed by X to those assisting him at CYMHS.
Dr B described a complex dynamic within which X and Y have formed their views as follows:
The children were seen to be strongly aligned with their father. They had taken on their father’s overvalued ideas regarding health, which bordered on paranoia. This had resulted in their refusal to drink tap water, due to its impurities which had been demonstrated by him and refusal to eat supermarket food, given the potential for contamination. They had also pursued evidence of their mother lying in their ill-advised attempt to support their father’s Application. Through their actions, the father and paternal grandmother had repeatedly communicated to the children support for their desire to spend more time in their father’s care. This dysfunctional family dynamic had amplified their frustration and anger towards their mother and maternal grandmother, thus promoting their escalating oppositional and defiant behaviour … An amplifying echo chamber was observed involving the children, their father and paternal grandmother.
Given the above, Dr B opined that “limited weight should be given to their repeatedly expressed desire to reside with their father.”
Safety, needs and parenting capacities
X’s needs and safety
X has particular needs which became evident towards the end of 2023, and worsened during 2024. He has a very poor school attendance record, being about 20 per cent in term 3 of 2024 and close to 0 per cent in the final term of 2024. His school performance is suffering. He has been struggling with his mental health.
X was referred to CYMHS by his school psychologist in August 2024. In her referral, she indicated growing concern among school staff for X, including in relation to his school attendance, social engagement, daily functioning skills and self-care skills. She also reported that she had observed “several examples of paranoid thoughts/behaviour that I find concerning” including:
[X] has reported he believes his mother is poisoning his food
[X] reported only eating fruit at home, due to fear of his food being poisoned. However, when he is offered meals at school, he will decline them.
He reported that he believes his mother has drugged his sister on occasion.
He reported his grandmother is “using the family pet dog” to “separate [X] from his father”. [X] was unable to elaborate further on this.
He reported his mother watches him and his sister through multiple video cameras.
Suspicions about his grandmother “searching his room”. He described multiple paranoid thoughts about this situation, but there did not appear to be any objective cause for concerns.
The ICL tendered records of X’s mental health assessment and treatment through CYMHS – including with psychiatrist Dr K. Those records had been reviewed by Dr B, who expressed a high degree of concern about X’s lack of school attendance and the observations Dr K had made of X.
On 28 August 2024, X is recorded as reporting that he believes his mother is lacing his and Y’s food and that he will not eat what she prepares for them. He is reported as appearing “dishevelled and with unwashed, matted, long shoulder-length hair”. He is reported as having low mood, social withdrawal and functional difficulties and as engaging in aggressive and angry behaviours towards the adults in his life. It was noted that “[i]t is unclear at this stage whether [X] is experiencing psychotic phenomena or whether his beliefs are reality based, though he is markedly distressed by these beliefs.” He is reported by Ms Bacci as being “increasingly aggressive”, pushing his mother at times, putting food in her bed, having tantrums, putting graffiti on the walls and holes in the walls and taping his bedroom shut.
There is some reference in the notes produced by CYMHS to possible psychosis, paranoia and fixed delusions about the mother and maternal grandmother. X is recorded as reporting he hears a mumbling voice, appearing “almost manic” and having suicidal ideation with no plan/intent. He is reported as having engaged in inappropriate communication with someone who he believed to be a teenage girl and who was requesting pictures of himself and his sister.
CYMHS reported to the school psychologist on 13 September 2024 that there was uncertainty about a diagnosis for X, “potentially Major Depressive Disorder with Psychotic features, or [X] could be experiencing a first psychotic episode.” Dr B opined that one possibility is that X is “showing early signs of vulnerability towards an evolving bipolar disorder”, although he indicated that:
… it can be very difficult to differentiate in such circumstances whether these are standalone psychotic beliefs or a shared delusional disorder, or whether these are an immature child essentially taking a ride on the very strongly held views expressed by a kind of stronger adult, in this case the father.
Ms Bacci gave evidence that X was discharged from the care of Dr K on 27 November 2024, having been diagnosed with major depressive disorder with psychotic features, adjustment disorder and internet gaming disorder. He was referred back to the school psychologist, although he was only receiving limited support from the school psychologist due to his ongoing absenteeism at that time.
Ms Bacci gave evidence:
[X] has showed slow but gradual improvement during and since their intervention. I have observed him to be less angry, spend more time out of bed, be willing to leave home to socialise, not use electronic devices as much, and he has been more willing to leave the house and interact with me during the day…
Nonetheless, there are ongoing issues with his school attendance. Ms Bacci is working with the school principal to implement a plan to get X back to school.
I have referred above to the last supervised visit which occurred between Mr Bacci, Y and X on 5 April 2025. Towards the end of that visit, X is recorded as saying “[h]e wanted to see how far his mum would go and threatened suicide 2 days ago most recently, saying she said she’d leave and give him time which was her way of suppressing his feeling and emotions.” Subsequently, the supervisor asked X if he was at risk of hurting himself. Both children are recording as having advised they were ok and X as having confirmed he had no thoughts of self-harm. This visit resulted in a report to the Department of Communities and Justice by the supervisor. The supervisor raised the suicidal comments and the need for a report with Ms Bacci after the visit. It is recorded that “[Ms Bacci] laughed and asked if that was associated with [X]’s phone being taken off him.” That recorded response was not put to Ms Bacci in cross-examination by the ICL.
Mr Bacci responded to what occurred by filing the April Application in which he sought, on an urgent basis, that X and Y come into his care. He made submissions to the effect that there was a risk that X would commit suicide if orders were not made in accordance with his views. He said that the Court would have “blood on its hands”, and when asked to clarify whether this was a threat, indicated that he was saying that there was a risk that X would commit suicide if orders were not made in accordance with his views.
Dr B had read and considered the Visit Report. He gave evidence that X’s statement was possibly an example of X behaving in ways to try and achieve certain outcomes. Dr B expressed his concern that X and Y feel supported behaving in these ways by Mr Bacci. He referred to Mr Bacci’s view that X is being suicidal because X is in his mother’s care. Dr B said that was different from his reading of what occurred (presumably, that X was saying this to try to influence Ms Bacci). Having read the subpoenaed material, including that produced by CYMHS (which also included references to suicidal ideation) and the Visit Report, he confirmed his recommendation that Y and X continue to live with Ms Bacci and spend no time with Mr Bacci. Having regard to the matters outlined below, I find that X is more likely to get the assistance that he needs in the care of his mother than he is in the care of his father.
Y’s needs and safety
There was less evidence about Y’s specific needs, although Dr B identified that she had learning problems and is vulnerable in that regard. Her school attendance has not been a significant issue.
Dr B opined about the needs of children approaching adolescence, and the importance of children having a secure base as they “navigate the hurdles of adolescence” and the need “for stable care and control to assist them in navigating the challenges of adolescence”. He referred to the importance of having parents who can respond in a calm, effective manner whereby they can provide “a balance between care and control in a respectful manner.”
Dr B was asked about what the likely outcomes were if this kind of parenting was not provided, and raised concerns about X and Y engaging in “acting out behaviour”, behaviour that puts themselves at risk, inappropriate relationship formation, and about their emotional and psychological development and academic performance in those circumstances.
Dr B opined that “there are multiple sources of concern with regard to the children’s vulnerability and the pathway – their current trajectory, based on the information that I have been provided.”
Mr Bacci’s mental health and behaviour
Mr Bacci was scheduled pursuant to the Mental Health Act2007 (NSW) in March 2022. Having reviewed the medical records from that time, Dr B opined that there was significant evidence consistent with a diagnosis for Mr Bacci at that time of bipolar disorder type 1 and a manic episode, notwithstanding that there was a diagnosis at the time of situational event or crisis. Dr B also gave evidence that there was a diagnosis of ADHD, and that stimulant medication had been prescribed for that condition, along with Lithium as a mood stabiliser. Dr B identified that the records showed that Mr Bacci discontinued Lithium in November 2023. In oral evidence, Dr B expressed concern that Mr Bacci may be taking stimulant medication but not a mood stabiliser – as was the case at the time of the interviews for the updating Family Report. Dr B opined that Mr Bacci previously “experienced psychotic symptomatology” and was “acutely paranoid” at the time he was scheduled. Dr B was clear that he did not make a current psychiatric diagnosis of paranoia.
Mr Bacci gave evidence about his mental health in his affidavit filed 4 November 2024 as follows:
I have not experienced ongoing mental health issues. My brief use of antidepressants and situational stress during my separation were isolated incidents linked to significant life pressures and my deteriorating relationship with [Ms Bacci] … Prior to the COVID-19 lockdown in early 2020, I had no mental health concerns. However, the lockdown, combined with [Ms Bacci]’s declining health and work pressures, led to temporary depression, resulting in a prescription for Sertraline at 200mg. I have since learned that this is quite a high dose and may have contributed to some of the side effects I began to experience.
In late February 2022, I began weaning off Sertraline, which led to significant conflict with [Ms Bacci], who incorrectly claimed that I was irrational and suicidal, resulting in a psychiatric hold. After my release, I started treatment with psychiatrist [Dr E]. Initially, she suspected bipolar disorder based on my medical history, but she later concluded that I did not have it … Throughout my treatment, I felt well cared for and confident in her guidance until September 2024.
Mr Bacci did not give evidence that in August 2024, Dr E had provided a report at the request of his then-lawyers. That report, referred to further below, raises significant concerns about his parenting capacity.
Mr Bacci’s affidavit filed 21 February 2025 has a less measured tone than the affidavit filed in November and gave an account of what had occurred during 2021 and 2022 which concludes with the following evidence: “[i]t became increasingly clear throughout 2023, due to the collusion and deprivation of my liberty, that [Ms Bacci], [Ms L] [the maternal grandmother], and their associates engaged in deceptive actions to have me sectioned against my will.” He went on to accuse police, doctors, nurses, and counsellors of breaching his human rights. Dr B had reviewed the documents and his evidence was to the effect that those records showed a proper basis for the sectioning in 2022.
Mr Bacci gave evidence under cross-examination that his mental health is stable. He said he had recently been taking medication for ADHD but no longer has an active prescription and is not taking mood stabilisers. He also gave evidence that his sectioning in 2022 was effectively a result of Ms Bacci’s premeditating, planning and orchestrating, and that medical authorities were complicit in breaching his human rights:
And why do you say that you stopping your medication contributed to your scheduling?---Because as well known, the Mental Health Act is not always seen as a constructive measure to assist, but a controlling measure to give doctors free rein to take precedence and make orders of people to take away their right to consent and their freedom of decision and freedom in general. So I was forcefully put into a facility from collusion with [Ms Bacci] and mental health facilities. Basically, I’ve read a lot of the reports, and they don’t reflect true record of information of what actually happened. And she made many false reports, and there are many people that are actually in this court, aware of it…
Dr B did not provide a definitive current diagnosis for Mr Bacci and opined that a precise diagnosis was not necessary, and that the key issue for the Court was not the appropriate diagnosis, but rather, “the father’s parenting capacity”.
Dr B identified that Mr Bacci had “engaged in psychological manipulation of the children, including exposure to Court proceedings. He was considered to have a paranoid and narcissistic personality structure. His actions had been a cause of significant harm to the children.” Dr B opined that his concerns with respect to Mr Bacci’s views on health and the communication of such views to X and Y lay “ … with the area of rigidity, whereby the father could not adequately consider the children’s experience, what that meant for them in their mother’s home, what it meant for them in other circumstances. .”
Dr E has previously been Mr Bacci’s treating psychiatrist since May 2022. A report prepared by her and dated 4 November 2022 was annexed to Dr B’s first Family Report. Tendered by the ICL during cross-examination of Dr B was a report prepared by Dr E and dated 9 August 2024, following a request from lawyers then acting on behalf of Mr Bacci. This report had not been disclosed in the proceedings, and had come to light as a result of a subpoena. Dr E indicated a diagnosis at that time of ADHD, possible Bipolar Affective Disorder and “narcissistic traits”, being a personality trait that does not meet the threshold for Narcissistic Personality Disorder. She opined:
I feel [Mr Bacci] has Narcissistic traits in two areas. The first area is his alternative beliefs re vaccinations, medication, and water and food contamination. These beliefs do not equate to a mental health diagnosis. However the intensity [Mr Bacci] has in regard to these beliefs demonstrates a profound lack of capacity to discuss them in a rational matter.
However the most problematic area in relation to [Ms Bacci]’s narcistic [sic] traits are the manner in which he has proceeded with his concerns re his children. Recently he had been able to in retrospect acknowledge how unhelpful his behavior [sic] was. However it is difficult to predict with certainty whether or not he would revert to exhibiting Narcistic [sic] traits in the future.
Documents produced by CYMHS in respect of X record a meeting between Dr K and Mr Bacci on 11 October 2024, which appears to have been a positive and useful meeting in which Mr Bacci effectively engaged with Dr K with a view to addressing X’s needs. Having read the account of this meeting, Dr B contrasted Mr Bacci’s approach on that occasion with his subsequent behaviour by way of complaints about the professionals (but not Dr K) involved with the family and these proceedings. During the July 2024 interviews with Dr B, Mr Bacci was able to be reflective about his own behaviour and to acknowledge errors that he had made. Again, Dr B contrasted this with Mr Bacci’s subsequent behaviour and in particular his behaviour at the supervised visit on 5 April 2025 as set out in the Visit Report.
Mr Bacci is now highly critical of the professionals involved in this matter. That is evidenced in part by his February application. His affidavit filed 8 April 2025 contains multiple and extreme criticisms of professionals and systems, expressed at times in nonsensical legal terms – for example, it commences: “[t]hat I the living man known as [Mr Bacci], within the constructive trust of [Bacci], lawfully asserts biological standing and sole natural authority over the living progeny known as [X], and [Y]”. It contains disturbing references to the bible including:
That in Luke 11:46-52, the Messiah speaks directly to the experts in the law, condemning them for burdening the people with unbearable loads, yet offering no help.
That woe is pronounced upon those who build the tombs of the prophets their ancestors murdered – thereby testifying to and approving of the legacy of injustice.
That this generation is held responsible for the blood of all prophets, from Abel to Zechariah, underscoring that spiritual accountability transcends time.
That God, in His wisdom, said He would send prophets and apostles, knowing some would be persecuted and killed, affirming that truth-bearers are always resisted by corrupt systems.
That verse 52 declares: “Woe to you experts in the law, because you have taken away the key to knowledge. You yourselves have not entered, and you have hindered those who were entering”.
That this serves as a direct spiritual reflection of the conduct of modern legal officers and authorities who obstruct truth, deny justice, and prevent the innocent – especially progeny – from entering safety, peace, and rightful care.
Mr Bacci gave evidence that he believed there had been criminality by the ICL, and did not accept that Dr B is well qualified to assess what is in X’s and Y’s best interests. During submissions, notwithstanding I suggested to him that he focus on the substance of the dispute, he almost immediately and insistently returned to a narrative which saw a conspiracy between Dr B, the ICL and the children’s therapist – who he repeatedly referred to as “third party interlopers.” For example, when asked about whether he accepted the independence of Dr B he said “I do not accept third-party interlopers that I did not consent to, and I’ve dismissed on numerous occasions, and that is not accepted”. When asked about whether he accepted the independence of the ICL, he said “[t]here has been no independence at all. There has been collusion and alignment”. He gave evidence that he believed that there has been collusion between Dr B, the ICL and Ms Bacci’s solicitors. He attempted to ask questions of Dr B which suggested that Dr B was engaged in perjury and that there was a conspiracy between Dr B and the ICL and that Dr B had influenced Dr E to change her position. He was also critical of his former treating psychiatrist, Dr E, alleging that she had changed her opinion because of a conversation which she had with Dr B. He was critical of the General Practitioner who prescribed him Seroquel in about 2022, and suggested there had been some sort of collusion between that General Practitioner and Ms Bacci – even to the extent that he gave evidence that he believed the General Practitioner had written scripts for him on the request of Ms Bacci and without seeing him. He was also critical of the lawyers who at various stages had been on the record for him – including the lawyer appointed pursuant to s 102NA for him, who had filed a Notice of Address for Service and appeared on the first day for the purpose of seeking leave to withdraw. Mr Bacci saw this as the lawyer speaking for him when he had no authority to do so. He gave evidence that lawyers acting on his behalf were colluding with other lawyers and that there were “underhanded dealings going on.” During cross-examination, he confirmed that, as deposed in his affidavit filed 21 February 2025, he regarded orders of the Court made in June 2024 as “unlawful abduction by way of legal threat, entrapment, coercion …”
X and Y had been attending on a counsellor, Ms D, from September 2022. On 27 June 2023, Ms D recommended that X’s and Y’s time with Mr Bacci be limited to daytime only. Mr Bacci then sought that the children cease treatment with Ms D, and made an application to the Court to discharge her. Dr B reviewed Mr Bacci’s correspondence with Ms D and found it to be “disrespectful and undermining of the children’s experience.” She is the third of the “three interlopers” who Mr Bacci referred to throughout the hearing. Having spoken to Ms D, Dr B recommended that X and Y continue counselling with her. The evidence is that they have refused to attend on Ms D, and that X last attended an appointment with her on 5 August 2024.
In response to Ms Bacci’s recent proposal for X and Y to attend a new counsellor, Mr Bacci wrote “…it is the position that I hold, no counsellors, psychiatrists or psychological professionals will receive my approval unless the following fair and reasonable conditions are met, to ensure fairness and the interests of [X] and [Y]”. One of those conditions includes “…due to the risk of further human rights breaches, strict adherence to the relevant laws, including the Australian Human Rights Commission Act 1986 and the Human Rights Act 2004 (Australian Capital Territory), along with the fiduciary duties of all public servants involved, is critical.”
This extreme and unjustified approach to professionals, which includes an apparently unwavering conviction that he is right and they are wrong, exemplifies the strong views and rigidity which Dr B opined damages Mr Bacci’s parenting capacity and makes any form of co-parenting unworkable. This approach to professionals also leads me to find that Mr Bacci will not be able to effectively engage with professionals who are assisting him, X and Y, unless such professionals take positions with which he agrees. I also can have no confidence that Mr Bacci would obtain appropriate professional assistance for X and Y if that was his responsibility.
Mr Bacci has also sent Ms Bacci messages expressing strong views about a number of matters, including:
·To the effect that he does not support any vaccinations for the children (March 2023);
·He does not want the children to undergo Rapid Antigen Testing (“RAT”) unnecessarily because of fibres on the test swabs (to this end, expressing after X undertook a RAT: “[a]s his Father my wishes are for him to not be exposed to anything covid/test related … If you are concerned about their health, look at their diets”) (April 2024);
·That “[b]reakfast is unneeded for kids and adults, plenty of water in the morning, if they are hungry, some high water content fruit will give them all the energy they need until first food break at school. Which should include fruit and nothing carby or to [sic] heavy until at least lunch. If this is followed an improvement will be noticed within 2 weeks if consistent. Clean water is also imperative, if you can accommodate for our kids [sic] sake, the only water they should consume is bottled water: ‘alka powered’ or something of that trusted calibre, so far that’s is the best I can find that’s readily available most supermarkets.” (October 2023)
·In relation to glasses for Y: “… to be honest my opinion of glasses is not great, I believe they deteriorate the eyes, as they become reliant on them … I have done some research previously on natural methods to improve eye sight, as you know I stare at a pc all day most days for allot of years and have perfect 20/20, though a few years ago my long sighted vision had started to deteriorate, these days it’s perfect, I put it down to diet, exercise and constant change of scenery.” (April 2023)
·After Ms Bacci communicated to Mr Bacci that it had been recommended Y enrol into an intensive Reading Clinic Program and passed on results from an assessment completed by Y, Mr Bacci replied: “[t]hat report looks to me like the university is selling its own services, have you got a second opinion? I’m concerned about burdening her with the amount of extra tutoring and work … this may have a negative impact on her and her confidence … not everything that doesn’t meet your expectations need a medical diagnosis from a business that is essentially there to turn a profit.”
As Dr B opined, there is no difficulty with Mr Bacci holding these views, but harm is caused to X and Y because of the strength and inflexibility with which he holds them, his insistence on compliance with them, his unwillingness to accept the advice of professionals, and the fact that he imparts them to X and Y in such a way as to affect their own behaviour negatively. For example, Ms Bacci gave evidence that X and Y sometimes refuse to eat breakfast, at one stage would only drink bottled water, that Y started refusing to wear her glasses and attend the reading program, and that they refuse to wear sunscreen because of “chemicals”.
I have considered that Mr Bacci has completed a number of parenting courses, and that it was an agreed fact that, prior to the 5 April 2025 visit, the supervision reports raised no concerns about his behaviour and were positive. Also, Mr Bacci was able to be somewhat reflective about his parenting with Dr B – for example, by acknowledging he had placed X and Y in the centre of the conflict and that he should not have provided them with a lockbox to use in their home. There was, however, no evidence of such reflectiveness at the hearing and Dr B commented on the contrast between some reflectiveness at interview and what Mr Bacci had said to the children during the 5 April 2025 visit.
When asked by counsel for the ICL whether Mr Bacci “has the reflective capacity to meet the children’s needs”, Dr B opined clearly “[n]o”. In particular, Dr B opined that Mr Bacci has an authoritarian approach to parenting, and as to the difficulties this poses for adolescents, observed:
The risk under such circumstances with a strong authoritarian approach to parenting is everything is fine until you stand up to that parent. And then there’s a lack of capacity to express your thoughts and feelings. There has been discussion about the experience of adolescence. Adolescence is a time of testing out aspects of identity. The typical experience with authoritarian parenting is that it goes underground – such behaviour is not – such views are not capable of being expressed, so it will either be suppressed or escalate dramatically. I think, in this situation, it is more likely that the children will be compliant with their father’s views.
It also reflects very poorly on Mr Bacci’s parenting capacity and insight that he sought, during the hearing, that X be brought to Court to give evidence. Mr Bacci seemed to have no insight that this would likely be highly distressing for X.
Ms Bacci’s parenting capacity and safety issues in her care
In his updated Family Report, Dr B identified that there was no indication of a significant impairment in Ms Bacci’s parenting capacity and that she “was identified to be well supported by the maternal grandmother, who was seen to be thoughtful, reflective and organised when considering the children’s circumstances.”
Under cross-examination by counsel for the ICL, Dr B opined, in response to a question about Ms Bacci’s capacity to deal with X’s and Y’s needs, that she has been struggling. He went on to opine that:
… I think there is no doubt that the mother would experience an improvement in her capacity to provide adequate care of the children with the resolution of the types of issues that she was dealing with, with regard to the father’s influence and with regard to the children’s ongoing, disruptive, oppositional, deceptive and misleading behaviour.
Ms Bacci gave oral evidence and was cross-examined by counsel for the ICL. She impressed as being child-focused, realistic about the difficulties which she faces if the Court makes the orders which she seeks, but nevertheless optimistic that she can address them. She was thoughtful about what strategies she would use, and identified two more extreme strategies that she would use if necessary – namely, moving interstate to provide a “fresh start”, or enrolling X at a boarding school. She gave evidence that she had had some discussions with a boarding school which was prepared to take X and she was hopeful that, if he attended that school, X may complete Year 12. She presented as very worried about X’s mental health, but not defeated.
She gave evidence, and I accept, that her own health has improved.
One of the significant risks in this matter is that, if Y and X have time with their father, he will undermine Ms Bacci’s parenting either directly or indirectly. The most recent and obvious example of such conduct is his provision to the children of a “lockbox” for them to keep their possessions away from their mother. Dr B gave evidence that the provision of a lockbox would “very clearly have the impact of undermining any sense of security that the children experienced in the care of their mother.” He opined:
[t]here was a great deal of oppositionality, defiance, lack of respect in which the children did not trust the care provided by their mother or maternal grandmother, and indeed, that was fuelled by – in my view, fuelled by communications such as, ‘Here’s something, you know, where you can lock your possessions up’.
In a similar vein, Dr B identified the role played by Mr Bacci’s “overvalued ideas regarding his concerns regarding contamination” which, in his view, “was considered to have been detrimental to the children’s capacity to trust the general care provided by the mother and maternal grandmother and medical care.”
Dr B gave evidence that “[s]hould the mother’s [o]rders be granted, the children will be angry and difficult to contain for a period before settling down into a more stable routine.”
Mr Bacci raised issues about the safety of X and Y in Ms Bacci’s home, and put to Dr B that the children had raised a number of matters which gave rise to concerns they were at “significant psychological risk”. Dr B responded that his view was that those complaints were “not indicative of inadequate care” but rather “were being expressed in the context of their strong alignment with their father and desire to reside in his primary care”. Dr B indicated that in this context, “I was concerned about simply providing face validity to the children’s expressed statements.” In the updated Family Report, Dr B “did not identify the children to be at risk or that they were provided inadequate care by the mother, as alleged by the children, father and paternal grandmother.” I accept that evidence.
Dr B opines that Mr Bacci’s and the paternal grandmother’s “attention to the children’s ongoing complaints had served to reinforce, encourage and maintain their hostility towards their mother and maternal grandmother and had placed them in a pathological dynamic of triangulation”. Further:
It is my view that the father’s strongly held views regarding the appropriateness of certain types of nutrition has been a significant influence on the children. It is also my view that the children’s exposure to parental conflict and unstable family circumstances has been a significant contributing factor to their anxiety and distress. They have been very distressed by the lack of contact with their father. Their communication with their father has validated their distress and resistance to their care by their mother and has validated concerns about how they have been neglected and been poorly cared for and responded to in an unjust manner by their mother. And so all of these factors contribute to a cycle whereby the children are resistant to the care and control provided by the mother. When she is responding to their resistance, that is interpreted as abuse. When she is not responding to their perception of what they need or what they want, they experience that as neglect and emotional abuse and it is my understanding that the father, in his communication with the children, have [sic] validated such views of the children which then contribute to their behaviour and resistance and then the mother’s distress and difficulty in providing adequate care and control.
The implications of the orders I am asked to make upon Y’s and X’s relationships with each parent
Dr B gave evidence that, if X and Y lived with their father, they “are unlikely to maintain a relationship with their mother and maternal extended family.” Self-evidently, if the orders Ms Bacci seeks are made and complied with, they will not have a relationship during their remaining childhood with their father.
In relation to a question from me about the prospect that, if X and Y lived with the father, their view about their mother might change, Dr B indicated that he could not see any basis for X’s and Y’s views of Ms Bacci to change, given Mr Bacci had demonstrated his lack of respect for professionals’ views and his strongly held convictions. Dr B opined with respect to Mr Bacci’s views “ … there’s certainly no indication that that involves any leeway around supporting and respecting the mother. So I don’t see any reason why that would shift if the children were under his sole care and protection.”
Mr Bacci has palpable contempt for Ms Bacci. In cross-examination, when asked whether he believes that Ms Bacci wants orders in the best interests of the children he said “[n]o, absolutely not. She’s maliciously trying to inflict pain on me…” In his written submissions, he referred to a question asked of Ms Bacci by counsel for the ICL as to when X last hugged her, and wrote “[y]et the mother, emotionless and detached, failed to rise to the moment, instead offering a visibly unconvincing display of maternal instinct, revealing not empathy but general contempt for the situation and our progeny’s lived experiences.” My own impression of Ms Bacci’s response to the question was that she was moved by it, but worked to contain her emotion. In his oral submissions, Mr Bacci added “… if you would actually look at the children’s statements, I think the word [sic] ‘narcissistic’ and ‘emotionless’ is the best characteristics to describe the mother.” Despite the contempt with which Mr Bacci holds Ms Bacci, he seeks orders for X and Y to spend time with Ms Bacci in accordance with their views. Such orders are sought by Mr Bacci in spite of evidence in his most recent affidavit that “both [X] and [Y] clearly and unequivocally stated they ‘never want to stay with Mum again’, describing their current living situation as ‘a prison’”. His proposals for the involvement of professionals in the facilitation of the children’s time with Ms Bacci are unclear and unworkable. I can have no confidence, given his approach to these proceedings, that he is capable to working constructively with professionals unless they adopt his narrative and approach. This is notwithstanding that he included in his oral submissions the following:
Now, I don’t believe that that is a reason to not allow the children to have a relationship with the mother. I just believe that the trust needs to be re-established and a – a good, safe and trusting relationship needs to be formed there. Hence, my orders stating facilitation for that method …
… I require you to make my interim orders today in the best interests of our progeny and justice. This is a result of absolute critical safety requirement, and that action must be dealt today in full. Now, further to that, following that action be made and my children be returned to me tonight. And it’s very reasonable orders and I was very careful in the consideration of all parties, and if you need to amend them slightly to ensure the mother has good coverage in there – because I do agree the relationship needs to be mutually on a co-parent basis.
Now, short of that happening, all that we need to do is to ensure that there’s facilitation for the progenies to actually get to a consent level, but I will be making that happen. If we need to set a timeline on when they are happily going there by themselves, then we can put that in the orders, but that being said, look, very well aware of the Family Court we are in, and with this interim order in place, that I will motion the court that this matter be conveyed to the correct jurisdiction. It’s the equity jurisdiction, and we if go to the Supreme Court, and pursuant to the provisions of the Cross Vesting Act of 1987.
Now, I think that’s a pretty good deal for you, your Honour, because you’re actually saving some kids, and removing a lot of harm from their lives, and giving myself the opportunity to prove to the court that we end up in, that we have done great work with these two young, innocent lives, and they are now going to school. They are now participating in life. They have a good – I’m going to make sure of this – I’m going to make – they’re going to have a good relationship with their mother and engaging with her and are mutually respectful, and forward-moving relationship that is based not out of fear, but out of enjoyment of each other’s company, which that will be happening with me straight away, and I guarantee that, and as [Dr B] said, I think the response of [X] and [Y], finally, after three years, to tell this order be made, they will be delighted.
I do not accept, given all of the evidence, that Mr Bacci is genuinely committed to X and Y having a relationship with their mother, nor that he is capable of promoting such a relationship with or without the assistance of professionals.
Having regard to all the evidence, including Dr B’s opinion, I am satisfied that, if I made an order for X and Y to live with Mr Bacci, they would be likely to lose their relationship with their mother.
The orders sought by Ms Bacci and the ICL mean that X and Y will not continue to have a relationship with Mr Bacci during their childhood. That is a relationship which they value highly. Dr B observed a “genuine loving and enthusiastic connection” between Mr Bacci, X and Y. I accept Dr B’s evidence about the loss of this relationship, as follows:
I think it is to the children’s detriment to not have a significant and substantive relationship with their father. The children love their father. They strongly desire a relationship with their father. And that was the basis for my opinion in 2022. It was the basis for my support of ongoing limited contact when I assessed the children in 2024, in July. I am very concerned by the children’s mental state. I am very concerned by the children’s behavioural issues. I am very concerned by the decline in the children’s general function and wellbeing, in the context of their exposure to the ongoing unresolved family circumstances. I am very concerned that there does not appear to be any pathway that I could identify whereby the children could maintain a significant and substantive relationship with both their parents, which was my recommendation in 2022. I am very concerned that, despite the importance of such issues being very clearly highlighted by both myself, but also in the report of [Dr E], that there does not appear to be any change in the father’s approach to his communication with the children. And so the risk of harm, in my view, outweighs the importance of the children maintaining a relationship with their father …
ORDERS
I am satisfied that it is in X’s and Y’s best interests for them to continue to live with their mother and to spend no time with their father. I have considered all the matters referred to above in making my decision. I have carefully considered X’s and Y’s views and the seriousness of a decision which is contrary to those strongly expressed views, particularly given their ages. I have considered the possibility that they may refuse to continue to live with Ms Bacci. Ultimately, however, for the reasons set out above, I am satisfied that their views are not consistent with their best interests. Both are vulnerable young people with significant needs – X particularly so. As set out above, Mr Bacci does not have the capacity to meet their emotional and psychological needs, nor their needs for relationships with their mother, and is likely to engage in behaviour which is emotionally and psychologically damaging to them. As set out above, I am satisfied that they are safe from harm with their mother, that she is committed to meeting their needs, and that her capacity to address those needs will improve with the end of these proceedings and the cessation of contact with their father.
Neither parent nor the ICL sought that there be final orders for professionally supervised contact, but I have considered that as a possibility. I am satisfied, based on the report of the supervised visit which occurred on 5 April 2025, as well as the other matters referred to above, that Mr Bacci is likely to continue to engage in damaging behaviour, even if time with X and Y is professionally supervised. Such time would therefore continue to harm X and Y, including by undermining Ms Bacci’s parenting and her capacity to meet their needs and is therefore not in X’s or Y’s best interests.
It is a very serious matter to make an order which will have the consequence that X and Y will lose a relationship with their father, but I am satisfied that such an order is in X’s and Y’s best interests. No matter what order I make, X and Y will lose a relationship with one of their parents. For the reasons set out above, I am satisfied that having a relationship with their mother offers the best prospect of their needs being met.
Given the decision that X and Y should live with their mother and spend no time with their father, Ms Bacci will need to have sole parental responsibility and sole decision-making responsibility for them. I am satisfied she will make appropriate decisions for them, and that she should be able to decide which counsellor/s or therapist/s will best be able to assist them. She has already taken steps in that regard. I am not satisfied on the evidence that I should exclude Ms D as a possible counsellor/therapist. Dr B recommends she continue in her role. X and Y have expressed negative views about her. The decision whether to reengage her or to use a new counsellor/therapist will be for Ms Bacci.
I am satisfied that, unless restrained, Mr Bacci will continue to communicate with X and Y in an emotionally and psychologically damaging way and that that will undermine their mother’s parenting and their relationship with her. I am therefore satisfied that the restraints which I have made are necessary for their personal protection and appropriate for their welfare. Mr Bacci was asked which social media sites he had used to communication with X and Y and his evidence was unclear. He had previously used gaming sites to spend time with X. For those reasons I have included in the orders any social media sites and any gaming device or chat software in both the restraints on him and those on Ms Dawson.
I am satisfied that the purpose of the parenting orders I am making would be undermined by the involvement of the paternal grandmother in X’s and Y’s lives. That risk outweighs what would otherwise be the benefit to X and Y of having a relationship with Ms Dawson, with whom they have told Dr B they have a good relationship which they value.
Dr B opined that Ms Dawson had contributed to the “dysfunctional family dynamic” which had developed:
It was evident that the father and paternal grandmother lacked insight into the detrimental nature of their actions. This was particularly the case for the paternal grandmother, who remained highly motivated to support the children in having regular and sustained contact with the father and family. She lacked insight into the detrimental impact of her loving support for the children by providing validation when they sought refuge from their mother and maternal grandmother, given their alleged exposure to perceived abuse. An amplifying echo chamber was observed involving the children, their father and paternal grandmother.
Dr B further opined that “[b]oth the father and paternal grandmother had played a substantive role in promoting the children’s deceptive, oppositional and defiant behaviour towards their mother” and “lacked basic insight into the detrimental nature of their actions”. Dr B recommended that restraints be placed on Ms Dawson.
I am satisfied, based largely on the evidence of Dr B, that it is appropriate for the welfare of X and Y that I restrain Ms Dawson, notwithstanding that this will mean they will not have a relationship with her.
While I have not been able to make any findings about whether Mr Bacci has used family violence, an ADVO was previously made for the protection of Ms Bacci from Mr Bacci (now expired), on application by NSW Police. I take account of the fact that that order was made by consent and without admissions. Ms Bacci told Dr B that she remains fearful of Mr Bacci. His affidavit filed in April of this year contains some very disturbing language which, even if it was not intended, would likely have caused Ms Bacci to feel fear. I am satisfied that placing restraints on Mr Bacci for the protection of Ms Bacci is likely to ameliorate her anxiety, and that will have benefits for X and Y. I am therefore satisfied, notwithstanding that I can make no findings about family violence, that it is appropriate to make orders for the personal protection of Ms Bacci as well as X and Y.
I am not satisfied that it is appropriate that I make the restraints sought against the mother and the father by the ICL. Under the orders I make, Mr Bacci will not be able to contact X or Y nor communicate with them, and so will not be in a position to do any of the things which the ICL sought he be restrained from doing. There is no evidence that Ms Bacci has done or will do any of those things.
X and Y will find these orders hard to accept initially and, given their father’s position, are likely not to trust or respect the ICL. As sought by the ICL, I have therefore made orders that require the ICL to explain the orders to X and Y with the assistance of a Court Child Expert and in the manner recommended by a Court Child Expert.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Behrens. Associate:
Dated: 26 May 2025
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