Chadsey & Chadsey
[2022] FedCFamC2F 894
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chadsey & Chadsey [2022] FedCFamC2F 894
File number(s): BRC 1618 of 2012 Judgment of: JUDGE VASTA Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – Parenting – lengthy history of litigation – father convicted of sexual offences against the mother when she was a child – security for costs – non-payment of security for costs – final orders made Legislation: Family Law Act 1975 (Cth) Cases cited: Chadsey & Chadsey [2019] FCCA 112
Chadsey & Chadsey (No.2) [2019] FCCA 1388
Division: Division 2 Family Law Number of paragraphs: 106 Date of last submission/s: 5 July 2022 Date of hearing: 5 July 2022 Place: Brisbane Solicitor for the Applicant: Jennings & Co Lawyers Counsel for the Respondent: the Respondent appearing on his own behalf Solicitor for the Independent Children's Lawyer: C M Bint Family Lawyers ORDERS
BRC 1618 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CHADSEY
Applicant
AND: MR CHADSEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
8 JULY 2022
BY WAY OF FINAL ORDER, THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The mother have sole parental responsibility for the children X born in 2010, Y born in 2011 and Z born in 2014 (“the children”).
3.The children live with the mother.
4.The children are to have no contact whatsoever with the father.
5.Any application filed by the father is to proceed in the first instance on an ex parte basis in respect of the following:
a. The father’s liberty to proceed with any application; and
b. The father’s non-compliance with the order for security for costs made on 19 January 2022.
6.That the Independent Children’s Lawyer be discharged.
NOTATION:
A.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Chadsey & Chadsey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
On 19 January 2022, I made an order that the father pay $60,000 as security for costs before this matter was allowed to be further litigated. The father did not make such payment and has said that he would never be in a position to provide security for costs.
I asked all the parties for submissions as to what should happen from this point. I have received both oral and written submissions from the father, the mother and the Independent Children’s Lawyer (“the ICL”). I have taken all of these matters into account in formulating the orders that I will make.
To understand this matter properly, the history of the matter needs some exposition.
The original application of the father
On 24 February 2012, the father made an initiating application in this Court seeking parenting orders in relation to the children, Y (born in 2010) and X (born in 2011). In that application, the father sought that there be equal shared parental responsibility and a week about arrangement.
At the time of filing of that application, Y was aged two and X was aged three months. An affidavit of the father was also filed regarding the non-filing of a family dispute resolution certificate. In that affidavit, the father said he was making the initiating application as a matter of urgency because the mother was a flight risk.
There were two further affidavits of the father filed that day; the first was in support of the urgency of the application and a fear that the mother would relocate to Country H, while the second affidavit from the father stated that, in effect, the mother was threatening suicide.
A fourth affidavit was also filed that day giving details of the relationship between the father and the mother, details of the circumstances of their separation, details of the instability of the mother, details of the mother’s Facebook friends and details of her flight risk. Curiously, though, the affidavits still supported equal shared parental responsibility and a week about living arrangement being put in place.
While these documents were filed on 24 February 2012, in an affidavit of service, which was filed on 7 March 2012, it is indicated that the mother was served with the material on 1 March 2012.
What occurred before Judge Coates
The matter came before His Honour Judge Coates on 1 May 2012. There was no appearance for the mother. On that day, His Honour ordered that the children live with the father and spend time with the mother at all such times as the parties may agree. Such an order seems to be based on the material in the affidavits of the father that indicated possible mental illness and suicidal ideation of the mother.
It does seem quite incongruous that the father would make such explosive allegations in his affidavits, yet still seek a week about living arrangement. But submissions were made to His Honour by a solicitor who was representing the father on this occasion and those submissions seem to have been to the effect that an order, such as the one made by his Honour, was, in fact, warranted.
The father filed a subpoena to the Queensland Police Service on 22 May 2012, for documents to be produced by 4 June 2012. That subpoena related to information the Queensland Police Service had about there being an Emergency Examination Order made on 15 February 2012 and another one in April 2012 regarding the mother. It’s not clear on the file whether the subpoena was answered or not.
On 17 August 2012, the father filed another affidavit which was to update the Court on events that had occurred since he had filed the material. I do note that the affidavit was sworn on 1 May 2012, which was the date of the first order that His Honour made. If there were a reason why that affidavit was not before His Honour on the day of that first hearing, there is no explanation on the file.
However, it seems this affidavit was considered by His Honour later on. In this affidavit, the father talks of his increasing concern for the mother and her ability to care, protect and make decisions for the children. He detailed that he and the mother had been to a marriage counsellor and, whilst there had been an initial recommendation that the mother and the father not live together, the counsellor changed that recommendation and so the mother did end up living with the father under the same roof for some 12 days.
The father detailed that, on 3 April 2012, his own mother (the paternal grandmother) had to stay with him because she was recuperating from an operation. The father said that this turn of events angered the mother and the father then described an incident involving the mother and the maternal grandmother and the maternal grandmother’s partner, where the child, X, was taken from him.
The father described being physically assaulted by the mother, before the mother, the maternal grandmother and her partner went outside and waited for the police to arrive. Strangely enough, the older daughter, Y, was left with the father, who claims the police allowed that situation to occur.
The father described, in that affidavit, the mother’s changing living arrangements, unstable lifestyle and suicidal statements made both verbally and on text and Facebook. Oddly, the father exhibited photos of injuries from the “assault” and a screenshot showing he had a number of missed calls by the mother, but there were no screenshots of any text messages. There were no screenshots or printouts of the “supposed” Facebook posts.
The matter went before His Honour on 20 August 2012, with a duty lawyer representing the mother (which seems to be the first time that the mother had appeared). On that day, the order was made that the children live with the father and spend time with the mother for two hours each week, supervised at the Suburb F Contact Centre.
On 20 September 2012, a month later, the father filed a further affidavit, explaining that even though the relationship was over, the mother would not vacate the house of the father and would threaten suicide each time that the father tried to have her move.
The next day, 21 September 2012, the matter was again before His Honour Judge Coates. The mother appeared on her own behalf. His Honour made orders that the Department of Communities intervene in these proceedings. Having been made aware of the material contained in the father’s affidavit, His Honour ordered that, in the event the mother moves address, the mother file and serve a notice of address for service immediately.
So this created an amazing situation where the mother was living in the same house as the father and the children, yet she was still deemed as someone who needed to have supervised contact with the children. This is a bizarre situation and, to my mind, there was certainly more to this than met the eye. At this stage, there was still no material before the Court from the mother.
On 11 October 2012, the lawyer who had been representing the father withdrew. On 15 October 2012, His Honour Judge Coates made an order in Chambers adjourning the matter for mention on 6 February 2013. There was no more material filed in the matter.
On 6 February 2013, the father appeared, but the mother did not appear. There is no transcript of what occurred that day, but the matter was adjourned to a mention on 31 July 2013. There was still no mention as to what happened to the subpoenaed material, nor was there any mention as to what has happened to the order that His Honour had made that there be intervention by the Department of Communities.
The order, made on that day by His Honour, noted that if the mother did not appear on 31 July, the Court may make orders by default on a final basis in her absence.
The Orders of 31 July 2013
On 31 July 2013, without the filing of any more material, the father appeared on his own behalf and the mother did not appear. His Honour ordered, on a final basis, that the father have sole parental responsibility for the children and that they live with the father. His Honour ordered that the children spend time and communicate with the mother at all reasonable times as may be agreed between the parties.
On the face of it, this seems strange that the mother would not appear, considering that she was still living in the same house as the father. Again, there’s no transcript of what occurred on that day.
There was nothing more heard about this matter from there and the file lapsed as a finished matter.
The second application filed by the father
However, on 12 April 2016, the father filed an initiating application regarding the child, Z. Z was born in 2014. The application the father filed was for equal shared parental responsibility and that the child, Z, live with him and spend time with the mother at times as could be agreed, but to spend at least every weekend with the mother.
On the same day, the father filed an affidavit saying that the mother would not attend any form of mediation and was preventing him from having any access to the child. The father claimed that the mother had said she was intending to go to Country H with the child and made claims about her stability. Having a look at this application, the claims were in exactly the same terms as he had made in his initial affidavit back in 2012, when the application three years beforehand was about the two girls.
The father claimed that the mother was telling him that she was waiting for a DNA test to be completed before she was willing to negotiate any terms and whilst he, the father, was happy to have the test and pay for it, the mother was not agreeable to any form of test. The father claimed that the child, Z, has two biological sisters and that the three children definitely need to be living together under the same roof with him. He detailed his living arrangements and financial position and contrasted that with the living arrangements and financial position of the mother.
In that affidavit, the father said that:
The final order handed down by Coates J dated 31 July 2013 is attached. It granted me sole parental responsibility for my two daughters with an order that the two children live with me. The final order was also deemed to be of urgent nature due to the risks involved in the matter. The risks involved in this matter are of the same complexity and significance involving extreme risk as set out in my 2012 application. There is immediate detriment and uncertainty to [Z], [Z]’s two sisters, my family and to me if the respondent mother was to action any of the issues listed above, that the impact on the involved parties’ emotional development and wellbeing would be catastrophic.
It concerned me that this affidavit, written by the father, was witnessed, not by an independent JP, but by his own mother, the paternal grandmother.
A notice of risk was also filed that day, repeating the allegation that the father was of the view that the mother was about to take the child to Country H.
Unlike the previous application, the mother did file material in this second application. On 3 June 2016, the mother filed a response where she sought sole parental responsibility of all three children and that the father have supervised access only and attend anger management and parenting programs.
To support her response, the mother filed an affidavit. In that affidavit, the mother said that she had known nothing about the orders made by Judge Coates on 31 July 2013 until she had a fight with the father at the maternal grandmother’s house. The police arrived and the father insisted on taking the two girls with him. The mother resisted but the father produced a copy of the order of Judge Coates. However, this was not the most startling allegation contained in the affidavit.
The mother detailed that she had been a student at D School, Suburb G when she was a child. She entered into a relationship with a teacher at that school. That teacher is the father.
The mother said that she was 15 years of age when the relationship began in 2008. The father was 28 at the time. The mother detailed that she had been living a difficult life and had run away from home and had left school in 2008, having not completed year 11.
The mother, in that affidavit, acknowledged that the father was the father of Z. There was no hint in her affidavit that there was any controversy about this fact. The mother, in effect, said that there was a very controlling aspect to the father. She detailed that they had separated a couple of times during the course of their marriage, but that their final separation was 24 January 2016.
She detailed the concern that she had about the safety and wellbeing of the children when they were in the care of the father and she detailed that she actually had attended “mediation” with the father on 10 March 2016. This is in stark contrast to what the father had said in his affidavit when he deposed that there was no mediation.
The mother also filed a notice of risk, which referred to the heavy-handed nature of the father’s discipline and that a report had been lodged with Child Safety by a third party.
The first court date of the second application
The matter came before me on 6 June 2016. The father claimed on that date:
..that the mother had actually declined (sic) for the past nine months that [Z] is actually my son. In her submission on Friday, in her affidavit, she acknowledges that [Z] is my son and that she has been playing games around the fact whether I am the father or not.
I noted on that occasion that he had made that statement with quite an amount of glee in his voice, as if there had been an acknowledgment of something that he had known all along. The father then wanted to try and explain the fact that there had been a “mediation” when he had said that there wasn’t a “mediation”. The mediation, in fact, had occurred but did not proceed because of concerns from the Department of Child Safety and not because of any recalcitrance of the mother. The father sought to minimise the fact that he had totally misrepresented what had actually occurred in his affidavit.
There were two issues that disturbed me on that day.
Firstly, the relationship between the father and the mother seems to have begun while the mother was still a student at the school where the father taught. In his affidavit filed back in 2012, the father said he had begun to cohabitate with the mother on a date that just happened to be her 16th birthday. This would be an amazing coincidence if it did happen, but it shows that the relationship had definitely begun well before the 16th birthday of the mother. This fact, and the fact that the mother had been a student at the school at which the father taught, were not contained in any of the material before His Honour Judge Coates.
More importantly, though, was that the material the father had put before His Honour, Judge Coates, was to the effect that the mother was still living with the father but not in any form of sexual relationship. If the father and the mother were living together in a sexual relationship, there would be no need for the orders that had been sought by the father before His Honour, Judge Coates, as the marriage would still have been ongoing.
As Z was born in 2014, his conception must have been around 16 August 2013 which is just over a fortnight after His Honour, Judge Coates, had made final orders. It seemed to me that the father was contending before His Honour, Judge Coates, that the mother presented a danger to the children and did not want to be engaged in the court proceedings and, therefore, the order that he was seeking was an appropriate order. However, that same mother, the danger to the children, conceived another child of the father within a fortnight of those orders.
I ordered a Child Inclusive Conference take place involving all three children. I also ordered the child be represented by an Independent Children’s Lawyer.
What occurred after that date before the matter came back before me
On 14 June 2016, the father filed an application in a case asking for the matter to be transferred from me back to His Honour, Judge Coates. The father provided a supporting affidavit claiming that I did not understand the complexities of the previous matter heard by Judge Coates and that Judge Coates was the appropriate judge to preside over the carriage over this matter. The father subsequently withdrew that application.
The father then filed an affidavit on 4 July 2016. In that affidavit, there was a complete reversal of his attitude towards Z. In paragraph 6 of that affidavit, he said:
[Ms Chadsey] has another child, [Z], born [in] 2014 and presently aged two years. [Ms Chadsey] has yet to confirm whether I am [Z]’s biological father.
This is despite the father’s glee on 6 June when he said to me that the mother had acknowledged his paternity of Z.
His affidavit then detailed his version of the relationship with the mother. I noted that he was very careful to ensure that what he was saying was that he was not teaching the mother and he was not teaching at the school when the relationship began. He also detailed how he said the orders of 31 July 2013 were revealed to the mother and the maternal grandmother.
The mother then filed a further affidavit on 4 July 2016. In this affidavit, she detailed the incidents of heavy handedness displayed by the father towards the children. She detailed the family violence she said was committed by the father towards her during the time that they were together.
The Child Inclusive Conference occurred on 6 July 2016. In that conference, the father spoke about investigations by the Department into his relationship with the mother and that the Department was satisfied that there was nothing untoward.
The mother said that the father and the paternal grandmother coerced her to sign papers authored by the father declaring that they were not in a sexual relationship and that the father was, in fact, her guardian. The mother said that the father and the paternal grandmother arranged for her to take a morning after pill when she had a pregnancy scare while she was still 15 years old.
The mother told Ms J, the family consultant, that she recalls speaking to the Department and that the father and the paternal grandmother informed her that the father would be sentenced to prison if she admitted to their sexual relationship. She told Ms J that she did not want this to happen because she loved the father, so she went along with what he had asked.
The father reported to Ms J that he didn’t know whether or not he was the father of Z. He said to Ms J that he found evidence that the mother was “Googling” information about artificial insemination about a month before Z would have been conceived and that the mother was also sleeping around during this time.
I do note that none of this information, which would have been known by the father at the time of the final orders of 31 July 2013, was disclosed to Judge Coates.
The mother reported that there was no doubt that the father is Z’s biological father. She told Ms J that the two of them changed their diets so as to increase the chances of conceiving a boy. She said that the father asked not to name him on the birth certificate as it might cause difficulties with Centrelink. Still, I note that the surname of the child is Chadsey.
Because the application was now about all three children, I ordered that all three children be brought to the day-care centre at the Court on 13 July 2016. The mother apparently did not bring the children back to the father in accordance with an agreement that they had had as to her seeing the children in the weekend before 13 July. The father filed an application in a case asking for a recovery order.
However, the mother had complied with the order that I made that the children be brought to the day-care centre of the Court so there was no need for me to consider the recovery order anymore.
The father filed a number of other affidavits which were his denials of the allegations of abuse towards the children.
13 July 2016
On 13 July, it was very clear to me that there were many allegations and issues that needed to be sorted out in this matter. I made orders for a full family report and tasked the Independent Children’s Lawyer with investigating many of these allegations. This was going to take time and I needed to make a decision as to what was in the best interests of the children.
The following matters were of concern to me:
·The initial nature of the relationship with the mother and father;
·The steps taken to ensure that the true nature of the relationship was not discovered;
·The manipulation of the mother by the father;
·The circumstances of the making of the original order by his Honour, Judge Coates;
·The manner in which the applicant father tortured the evidence so that it fits within a factual matrix that suits his immediate purpose – a good example of this is his attitude towards the paternity of the child, Z;
·The allegations made by the mother about the behaviour of the father towards the children;
·The attempt by the father to perpetrate what is, prima facie, a fraud upon the Court and the history of the father twisting the facts to present to the Court the best situation according to him; and
·Most importantly, a sense that the father has tainted the evidence to suit himself and could easily do this if given unsupervised access to the three children.
When I took into account all of these matters, I could not be satisfied that there would not be an attempt by the father to manipulate the children if they were in his care. I did not consider that any regime other than a strict supervisory regime should be contemplated.
I made interim orders that reflected those concerns that I had. I ended up setting the matter down for trial.
The Trial
The trial began on Tuesday, 13 March 2018. The father was represented by Mr Neaves and Mr O’Meara appeared for the mother. The ICL was represented by the late Mr Andrew as His Honour then was.
At the trial, the major issue was that of the relationship between the mother and the father; its origins and the true nature of it. On the morning of day two of the trial, whilst the father was still being cross-examined, the parties told me that they had been able to come to a consent position.
By way of final order, I ordered, by consent, that the children live with the mother and that the mother have sole parental responsibility for the children. I ordered that the children spend time with the father at a contact centre for two hours at such times as could be accommodated by the centre but no more than on one occasion in each fortnight.
The issue of the true relationship between the father and the mother had not been fully ventilated. There was a reasonable suspicion that the father had behaved criminally towards the mother. The father vehemently denied any such suggestion. Because the evidence had not been tested, I was of the view that, on the state of the evidence before me, I could not reach any concluded view as to that element of risk.
I had faith in the Counsel who were appearing before me, and despite some misgivings, I made the Order which was commended to me by all three Counsel.
One part of the Orders that were made had a provision that the father had leave, until 13 March 2019, to bring an application to the Court to change the frequency of time and/or the nature of his time with the children having regard to the psychiatric or psychological counselling and/or intervention that the father had undertaken.
The third application made by the father
In October 2018, the father filed an application seeking to change the orders. For some reason the matter had a first court hearing before His Honour Judge Coates on 23 October 2018. His Honour sent the matter back to me and I mentioned the matter on 9 November 2018 in Chambers.
Because the matter now had to be viewed through the prism of Rice v Asplund, I made orders for the provision of written submissions and set the matter down for directions on 17 January 2019. The father had claimed that he had undergone psychological counselling and/or intervention so that he was now in a position to have contact with the children that was not supervised.
On that day, I refused to allow the matter to go any further. Some of what I said on that day, (Chadsey & Chadsey [2019] FCCA 112) bears repeating:
5.After the orders (of 14 March 2018) were made, the father, on the evidence, went to his general practitioner and was referred to a psychologist, [Dr B]. The father had his 10 sessions with [Dr. B]. Almost as soon as those 10 sessions were completed, the father filed an initiating application in this Court on 3 August, 2018.
6.That initiating application sought, as final orders, that the children live with both parents on a shared care basis, that is, seven days with the father, seven days with the mother and that the parents have equal shared parental responsibility.
7.Therefore, the initiating application was seeking a radical departure from the orders that I had made.
8.The evidence that the father has given, in the three affidavits that he has filed, are a report from the psychologist and reports from the contact centre.
9.One could say that, with regard to the reports from the contact centre, they illustrate that the visits are very good and very appropriate. The father is engaging with the children, and the children are engaging with him.
10.According to those reports, there have been occasions when at least one of the children have said to the father that they did not want to leave when it was time to leave the contact centre and that they wanted to stay with him; and on one occasion, that they wanted to go back to the father’s home. One of the children drew a picture of herself with a sad face with words “sad forever” which was, it could be inferred, an exclamation as to their emotional state at the fact that they are not going home with the father or spending time with the father other than at the contact centre.
11.As far as the psychological or psychiatric counselling and/or intervention was concerned, the report of [Dr. B], the psychologist, is a one-page report that says very little. Relevantly, it says this:
… [Mr Chadsey] was required to attend anger management as part of his divorce and child access proceedings.
12.Even though the psychologist stated the above as if it were fact, there was no order that he undergo such treatment. The order was simply that, if the father chose to undergo psychiatric or psychological treatment, the fact that he had done so would be looked at by the Court. So there was, to start with, a misunderstanding as to why it was that the father was engaging in treatment. There is nothing in my order that talks about anger management.
13. In any event, the report continues:
…In the clinical interview he reported a somewhat taxing context of his divorce, preceded by a volatile marriage. Taking his assertion at face value, then it would appear that the communication in the relationship between him and his ex-partner was somewhat disjointed and far of than optimal for the raising of children. He acknowledged the emotional impact on him but attributed fault to his partner. Having said that, the dynamic of his past relationship made any kind of clinical assumption irrelevant and non-objective in the sense of that the power and control circle has a starting point and will continue with the proxy of the Court. Current paradigm suggests most commonly males as perpetrator. I am not at liberty to challenge that paradigm which is statistically speaking, most likely correct, however the interaction of non-compatible personalities escalated in my estimation the domestic situation of [Mr Chadsey]…
14. The report further said:
…In treatment we focused on general anger management principles (work book provided), future partner choices, dealing with perceived provocation, dealing with court proceedings and managing the ambiguity of court order implementation which was sighted by the treatment provider on request of [Mr Chadsey].
It was observed in treatment that [Mr Chadsey] is seeking a dialogue with his ex-partner but feels rejected on an emotional level. He utilises external resources such as psychological therapy (to deal with his emotional response and to acquire parenting and conflict resolution skills post-divorce), his mother and others to deal with that situation in a mature and child centred way.
15. The psychologist concludes that:
...I have no reservation to recommend a review of his MHCP at earliest convenience.
16.Whilst that report may talk about anger management, anger management was really not the main issue here at all.
17.The main issue was that the father had absolutely no insight into the power imbalance that existed between him and his wife; the father being a teacher at the school of the mother. I did not made any finding on the issue of how the relationship began, because of the curtailing of the trial, but, even on the best case for the father, he began a sexual relationship with the mother when she had just turned 16; notwithstanding that she had been a student at the school at which he was teaching.
18.The father has failed to grasp the absolute impropriety of such conduct and in all of the affidavits simply ignores that aspect.
19.Instead, the father speaks of the mother making vexatious and unproven complaints and that the complaints have all been dismissed. When one gets to the truth of the matter, they have not really even been investigated.
20.There is nothing from the Teacher’s Registration Board or equivalent authority to say that they know of all of the circumstances of [Mr Chadsey] and find that he is still a fit and proper person to teach in this country’s schools. That is the sort of evidence I would expect to justify what the father says when he says that he has been cleared of all these allegations.
21.The father talks of the Queensland Police Service clearing him, but it would seem that all the Queensland Police Service could investigate was an allegation of unlawful carnal knowledge that occurred quite a number of years ago. It would seem to me that, notwithstanding that they may look at the matter, it would be very difficult to find that the prosecution of the matter was in the public interest.
22.Nevertheless, that does not diminish the seriousness of the impropriety that has occurred. What it shows is that the Applicant father does not understand boundaries. That “not understanding boundaries” is why it is that the Court has ensured that the contact that he has with children is supervised.
23.In all of the interventions that the Applicant father has undergone since I made the orders in March 2018, he has done absolutely nothing to confront that particular issue and really has come before this Court today totally ignoring that situation.
24.There has been nothing of any “psychiatric or psychological intervention undertaken by the father” that would show that any application, of which the father has leave to pursue, has any merit whatsoever.
30.Having regard to everything that I have said, it seems to me that, notwithstanding that order 6 allowed for the father to have leave to bring this application, this application has no prospects of any success.
31.It would be deleterious to the overall best interests of the children for the Court to allow such litigation to continue, and so I therefore find that there has been no substantial change of circumstances as that term is understood in Rice & Asplund (1979) FLC 90-725.
The mother’s application for costs on that third application
In dismissing those proceedings, the mother ended up filing an application for costs. On 27 March 2019, I dismissed that application for costs. In giving reasons (Chadsey & Chadsey (No.2) [2019] FCCA 1388), I said the following:
9.The mother, in very helpful written submissions, has pointed to the fact that the matter was always bound to be dismissed; that it was, in effect, a hopeless case in circumstances where the father should have known that he had no chance of success. Secondly, the mother says that in making his submissions, the father made allegations regarding the mother which he knew objectively to be false.
10.Whilst I have quite the sympathy for the mother, I have to look at the situation of the father. The father, despite his education, is not really a sophisticated person and, as I saw during the course of the hearing, has no real insight into what is going on. He really, without wanting to be cruel to him, is not a very intelligent person when it all comes down to it.
11.For the father to see an order such as order 6, it seems to me that, because of his lack of intelligence, he saw order 6 as an invitation to have, as it were, another go at getting parenting orders. It is true that this was a hopeless matter, but that is the reason why the matter was summarily dismissed, so that there would be a saving in costs and in time and in emotional energy.
12.When I look at all of the matters that I have to look at in regard to s.117(2)(a), even though one can question the conduct of the father, he did this without any legal advice. His lack of intelligence is something that caused the matter to proceed the way it did and, ultimately, he was wholly unsuccessful.
13.But those matters do not get it to the point that it rises above the default position that is that each party pay their own costs.
On 19 January 2019, the father filed an appeal against my order dismissing his application. This was abandoned on 10 June 2019.
The mother files an application
On 7 February 2020, the mother filed an initiating application seeking that the consent orders of 14 March 2018, regarding spending time, be vacated and that the Court order that the children spend no time with the father. This was now the fourth application that had come before this Court. The basis of this was an allegation made by the eldest daughter that there had been interference of a sexual nature of her by the father.
On 24 February 2020, I suspended the contact provisions of the consent orders of 14 March 2018. I ordered that the children be represented by an ICL and set the matter down for mention in May 2020. I had been told that the police were investigating the matter.
On 6 May 2020, I mentioned the matter. The ICL had scheduled family report interviews and was intending to subpoena documents. I adjourned the matter until 17 August 2020. One of the issues that would be ventilated in any trial, was the relationship between the mother and the father and its origins; the very question that was not ventilated at the previous trial because of the making of the consent order.
On 17 August 2020, I set the matter down for trial on 18 January 2021. I was informed that the father had now been indicted with offences relating to his relationship with the mother. This really put a lie to what the father had been saying to me, from 2016 but especially in his application in January 2019, that he had been cleared of any allegations of impropriety against the mother. I was told that the father would be vigorously defending those charges.
The matter could not be heard as a trial in January 2021 because of the impending criminal trial which I was told was to take place on 1 March 2021. I adjourned the matter for mention after the criminal proceedings had run their course.
The conviction of the father
The father was indicted on a count of maintaining a sexual relationship with a child which was averred to be a domestic violence offence, he was also indicted on five counts of indecent treatment of the child under 16 years which was also averred to be a domestic violence offence and four counts of indecent treatment of a child under 16 whilst under care which was also averred to be a domestic violence offence.
The trial started on 1 March 2021 and the father did plead not guilty to those charges on the morning of the trial. At 3:30 PM on the first day of the trial, his legal representative asked that he be re-arraigned. He then pleaded guilty to all 10 counts.
The father was sentenced to 3 ½ years’ imprisonment which was suspended after 10 months. His Honour Judge K of the Queensland District Court, was scathing of the father in his sentencing remarks. His Honour pointed to the vulnerability of the mother and that the father was opportunistic. His Honour described the mother as being “corrupted” by the father.
His Honour formed the view that there was a controlling aspect of the relationship; that is, the father was controlling the very vulnerable mother. His Honour described the lengths to which the father went to ensure that the true nature of his relationship with the mother was not discovered.
His Honour said to the father that he recognised “wholeheartedly and quite readily your conduct must have had serious direct effect upon this complainant woman”.
This changed the dynamic completely. There was no longer any question of whether the father had criminally interfered with the mother at such a young and vulnerable age. Notwithstanding that the matter was currently before me ostensibly because of the allegations made by the daughter, this fact of the plea of guilty meant that the orders that I made by consent on 14 March 2018 were no longer appropriate.
On 16 March 2021, I ordered that the children live with the mother; that the mother have sole parental responsibility for the children; and, that the children have no contact with the father. Because the father was not present, I did not discontinue the proceedings but adjourned them for mention until January 2022 when it was believed that the father would be out of prison.
Security for costs
The father was released from prison in late 2021 or early 2022 and the matter came before me on 19 January 2022.
Given the history of the matter and what had happened, I asked the father whether he still wished to proceed with this matter. I had hoped that the father would finally have gained the insight of which he had been so sorely lacking in the past and that he would recognise that these proceedings should now be halted. This was very much a forlorn hope. The father did not hesitate in telling me that he wanted to proceed with the matter so that he could have contact with his children.
I then had regard to the whole history of the matter, especially the costs that have been incurred by the mother and the ICL. I was cognizant of the costs that the mother had incurred because of the unsuccessful application brought before me, by the father, in January 2019. I was also cognisant of the costs that have been expended by the ICL on reports as well as the huge amount of work that she had undertaken.
But I was more cognizant that this matter had now been going on, in one form or another, since 2012 and that the incredible lack of insight by the father meant that there would be an inordinate amount of money spent if this matter were to continue when it was obvious on the evidence that there was only going to be one result.
Because of this, I was of the view that this was a matter that needed an order for security for costs.
On 19 January 2022, I ordered that the father must provide security for costs in the sum of $60,000 by no later than 4 PM on 27 March 2022. I ordered that if that order was not complied with, the father must file and serve material as to why it is in the best interests of the children that the current orders not be made as final orders.
Submissions of the father
The father had asked for the matter to be transferred to Division One of this Court. The father did not want me to continue as the docketed Judge because of the history of the matter. It is that very history that illustrates why I am in the best position to decide this matter. Matters should not be transferred to Division One unless it was a proper matter to be transferred and that the matter could, or should, not be finalised in Division Two. I refused that application.
On 1 April 2022, the father had not provided the Court with security for costs. I ordered that he file and serve written submissions as to the further conduct of the matter by 4 PM on 13 June 2022 and I adjourned the matter for hearing. That adjourned date has had to be administratively changed on two occasions because of core commitments and illnesses, but it was heard on Tuesday, 5 July 2022.
The father made a number of submissions, however they seem to be predicated upon the premise that the relationship between he and the mother is not the main issue; rather it is whether he has offended against the daughter. To this end, he argued that the Court should not receive any evidence from the family reports.
He said that the children told the family report writer that they did not wish to see him anymore but what they had said to the contact centre personnel was totally different. He argued that this showed that the mother had coached the children and that this was a matter that “needed to be investigated”.
As I said to the father on the day of the hearing, none of that was particularly relevant. The question was whether there was any benefit to the children in having any form of relationship with him. I explained to the father that the orders that were made on 14 March 2018, were predicated upon a basis that there was no criminality in his relationship with the mother, even though the Court had voiced its suspicions about this. Now that there was no doubt that the father had criminally violated the mother when she was a minor and extremely vulnerable, it was impossible to see how the children would benefit in having a relationship with him.
I reiterated that the Court had been disposed to litigating that question, but it would only do so if the father had provided security for costs. The father’s evidence was that he would never be able to provide such security for costs.
Both the mother and the ICL urged me to put an end to these proceedings now.
Conclusion
The father still has shown no insight into his behaviour. The evidence of remorse, which was referred to by His Honour Judge K, has totally evaporated. As the ICL so eloquently put the matter, it is staggering that the father still cannot understand why this aspect troubles the Court.
The Court can have absolutely no faith in what the father has said to the Court. He has been dishonest with this Court from the beginning. His protestations to me that he had not committed any criminal offence against the mother have been shown to be the most outrageous lies and true illustration of his character.
It was clear to me that the relationship between the mother and father was one that was predicated upon family violence and controlling behaviour. This point was not lost upon His Honour Judge K either. The continuation of these proceedings smacks of the father attempting to reassert control against the mother.
The interests of justice demand that these proceedings now be brought to a close.
I have decided to stay the proceedings permanently and to make the current orders as final orders.
To ensure that there is no further unnecessary litigation I will make an order that any further application filed must be assessed on an ex parte basis by the Court before the mother is forced to expend money, time and energy responding to any application by the father.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.
Dated: 8 July 2022
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