Danilov & Wynn (No 3)
[2023] FedCFamC1F 253
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Danilov & Wynn (No 3) [2023] FedCFamC1F 253
File number(s): BRC 15350 of 2019 Judgment of: HOWARD J Date of judgment: 9 March 2023 Catchwords: FAMILY LAW – PARENTING – Late disclosure of medical reports by the mother – Medical reports relating to children – Trial adjourned on the Court’s own motion Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 9 March 2023 Place: Brisbane Counsel for the Applicant: Mr Blaxland Solicitor for the Applicant: Barbeler & Cooke The Respondent Litigant in person Counsel for the Independent Children's Lawyer: Ms Hellewell Solicitor for the Independent Children's Lawyer: Smithson Lawyers Gold Coast ORDERS
BRC 15350 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DANILOV
Applicant
AND: MR WYNN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
9 MARCH 2023
THE COURT ORDERS BY CONSENT:
1.That $200,000 be paid to the Applicant Wife from the monies held in the Controlled Money Account of Barbeler & Cooke Solicitors, with such payment characterised as a partial property settlement.
2.That $30,000 be paid to the Respondent Husband from the monies held in the Controlled Money Account of Barbeler & Cooke Solicitors, with such payment characterised as a partial property settlement.
THE COURT ORDERS UNTIL FURTHER ORDER:
3.That these proceedings be adjourned for final hearing for not more than five (5) days commencing at 10.00am on 5 June 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
4.That the parties and their legal representatives (if any) personally attend Court for the final hearing commencing on 5 June 2023.
5.That the Independent Children’s Lawyers be granted leave to subpoena Dr R and Dr S.
6.That the Respondent Father be granted leave to issue subpoenas to Dr T, Dr U, Dr V, Dr W and Dr AA.
7.That costs be reserved.
IT IS NOTED:
A.It is requested that Legal Aid Queensland provide a solicitor for the Respondent Father as a matter of priority.
B.The father has informed the Court that he intends applying the $30,000 that he receives as a partial property settlement towards the payment of outstanding debts.
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 the pseudonym Danilov & Wynn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J
A. These reasons for judgment were delivered ex tempore on 9 March 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
Yesterday, the Court heard and determined an application that was brought by the father, seeking an adjournment of the matter. I gave reasons at that time. Those reasons will be settled and distributed, as will the reasons in relation to all the other interlocutory applications that have been dealt with these past two and a half days.
After the conclusion of the father’s application that I recuse myself and the dismissal of that application; after the dismissal of the father’s application for contempt against the ICL; after the dismissal of the father’s application for contempt against the mother; the father brought an application for an adjournment yesterday, 8 March 2023. As I have said, having regard to the submissions and the material that was before the Court at that time, and in exercising the Court’s discretion, the application for adjournment was dismissed.
Late in the day yesterday, it came to the Court’s attention that, in fact, there were some medical reports that had not come to light from the AB Psychologists (a group of psychologists). They relate to the child Y. The documents are in the possession of the mother.
When this was brought to my attention late in the day, I immediately issued a direction from the bench that copies of these documents be given to the father and to the ICL, and I understand that was done. I also directed that the mother file an affidavit explaining why it was that those documents had not been disclosed and the mother did that overnight. Leave was granted this morning for the mother to file and serve that affidavit.
I have not yet had an opportunity to hear the mother in the witness box on this issue. She has not yet been subject to cross-examination, so I’m not in a position to make a finding as to whether what the mother says in that affidavit is reasonable or is not reasonable. I do note she currently has sole parental responsibility, pursuant to an order made by a Registrar.
I made the following point earlier when explaining the Court’s decision whether or not to adjourn the matter in circumstances where Mr Wynn had filed contempt applications against the mother and against the ICL relating, in large part, to what he calls ‘non-disclosure’. It was not incumbent upon those persons to put forward any evidence at all. Contempt proceedings are quasi-criminal in nature and the person - that is the respondent to a contempt application - is not obligated to put on any evidence at all until it has been proven that there is at least a prima facie case. That is, a prima facie case for contempt of the Court. Now, in the applications heard yesterday, and the day before, the husband had relied upon a single affidavit to support all of the applications. The affidavit of the father’s was filed on 28 February 2023, but there are 13 pages at the outset followed by more than 300 pages of annexures. That is the one affidavit that the father read in all of his applications - for recusal, contempt, adjournment and so on.
As such, having read that material in the recusal application, the Court, of course, was well‑versed in the evidence relied upon by the father. Now, as I say, as things stood yesterday at the time of the dismissal of the adjournment application, I did not consider there was sufficient merit in the application brought by the father. My view about an adjournment has changed and, hopefully like all sensible people, when the facts change, I change my opinion. As far as I am concerned, the facts did change and the better approach is to adjourn the matter on the Court’s own motion – because of the documents that have come to light as referred to in paragraph 3.
The mother’s application for leave to proceed instanter with an application for an injunction against the father
Today, counsel for the mother has sought leave to file an application for an injunction against the father, prohibiting him from contacting the children’s various medical practitioners. Counsel for the mother indicated this order was sought because of the father’s previous behaviour towards the children’s medical practitioners. Mr Blaxland submits that it is “because his past modus operandi has been to contact people and involve them in the litigation”.
I am not inclined to issue an injunction for a number of reasons. Firstly, I have not had the opportunity to assess the credit of either the father or the mother in the witness box. The mother says that the father wrote some information - letters or emails - to the children’s school that the mother says was completely inappropriate. As to whether that occurred, I do not know. The father has not had a chance to respond as to the circumstances in relation to it.
As I have been saying for the best part of two and a half days – primarily, my comments have been directed to the self-represented father, but they apply equally, and I am sure everyone has heard them – until the Court can assess the credibility of witnesses in the witness box, it is very difficult to take certain steps. I would be loathe to issue an injunction against any parent in the absence of very clear, unambiguous evidence which has been able to be tested under cross-examination.
Further, the father has not had a chance to respond to that affidavit that was filed today.
The father will be acutely aware, as is every parent is in this jurisdiction, that their conduct – a parent’s conduct is a relevant issue in relation to the Court making best interest determinations. If a parent – and I am not saying this has happened, but if a parent behaves badly – sometimes, I have had cases where people, at changeovers, have been abusive and sworn at the other parent in front of the children and in front of the public. This sort of poor conduct by a parent is taken into account by the Court.
So if a parent behaves badly, it is a matter for the Court – if the Court makes a finding that it occurred, the Court will take it into account. Mr Wynn and the mother will both be aware that their conduct is under the spotlight of the Court. Mr Blaxland has drawn it even more to the attention of both the Court and the father by seeking leave to file an application for an injunction.
My view is that leave should not be granted to the mother to proceed with an instanter application for an injunction - because I think it will unnecessarily distract everybody from the main issue, which I was talking about previously, which is making sure there is before this Court everything that the Court needs to assist it to make a best interests determination concerning these three children.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 9 March 2023
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