Duran & Duran
[2025] FedCFamC1F 136
•7 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Duran & Duran [2025] FedCFamC1F 136
File number(s): NCC 1521 of 2022 Judgment of: SMITH J Date of judgment: 7 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Voir Dire – preliminary question – whether evidence sought to be adduced by a lay witness without prior notice in cross examination is sufficiently probative to allow admission - consequence of admission of late evidence likely to be adjournment part heard of final hearing – evidence goes to significant factual issue in dispute – issue whether mother remains in a relationship with, or continues to expose children to, a person who is alleged to pose an unacceptable risk of sexual harm to the children - evidence relevant and potentially highly probative – evidence on voir dire admitted into evidence in trial - an adjournment will be granted if necessary to allow the late evidence to be addressed Legislation: Evidence Act 1995 (Cth), s 189 Cases cited: Isles & Nelissen [2022] FedCFamC1A 97 Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 7 February 2025 Place: Newcastle Counsel for the Applicant: Mr Seow Solicitor for the Applicant: Alan McNeill Solicitors Counsel for the Respondent: Mr Teoh Solicitor for the Respondent: Lindeman Lawyers Counsel for the Independent Children's Lawyer: Mr Bateman Solicitor for the Independent Children's Lawyer: Hannaway Lawyers ORDERS
NCC 1521 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DURAN
Applicant
AND: MS DURAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The evidence which was subject to a voir dire, being three separate photographs of Mr Bellerby in front of the residence of Ms Duran, be admitted as Exhibit ICL4.
THE COURT NOTES THAT:
A.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
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 the pseudonym Duran & Duran has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
In this matter the father called as a witness a Mr E, who is a friend of the father's and was a friend, or acquaintance, of the mother.
Mr E gave evidence supportive of the father’s case.
In the course of oral evidence Mr E indicated he was aware the father had concerns about Mr Bellerby, and the potential risks of harm Mr Bellerby may pose to the children. He gave evidence he was aware of the factual dispute in these proceedings about whether or not the mother and Mr Bellerby remain in a relationship or whether she continues to bring the children into contact with Mr Bellerby.
Mr E said that on 18 January 2025 he was driving past the mother's house and saw Mr Bellerby outside and around the mother's house, noting they all live nearby. He said he stopped and took photographs which showed Mr Bellerby at the mother's house. He produced these photographs in court. The mother objected to this late evidence without notice being admitted in the proceedings.
Evidence was taken on the voir dire to determine whether the evidence should be admitted.[1]
[1] Evidence Act 1995 (Cth), s 189.
The background is that the father raises the question of sexual risk if the children are exposed to Mr Bellerby and there is an issue whether the mother is still in a relationship with Mr Bellerby and / or bringing Mr Bellerby into contact with the children.
The issue of the alleged sexual risk can be identified by looking to Exhibit ICL3, which is the report of Dr F in the Bellerby & Stein matter. That matter was listed with this matter with Mr Bellerby as the applicant father, but which settled on day one on the basis of no time or communication between the children and Mr Bellerby. Dr F said at paragraph 77:
77.In [early] 2021, the father was interviewed by JCPRP and admitted masturbating in the bedroom of his two oldest children in 2015/2016, prior to [G] being born. The father stated the children were asleep and were not the focus of their sexual attention…
The reference to father in this paragraph is a reference to Mr Bellerby. Mr Bellerby identifies as non-binary, so the reference to “their” in the paragraphs is to Mr Bellerby alone. Mr Bellerby’s counsel indicated, before that case resolved, that Mr Bellerby is content to be called Mister.
There is also in evidence a text or post message from Mr Bellerby which says:
Appropriate shame should be felt. I have experimented sexually with animals when I was a young teenager and now understand better the necessities of consent. I have struggled to manage my sex drive as a young adult and I have endangered myself as a result of this, masturbating in public areas or while in working situations. I have not maintained proper sexual boundaries around my children, I masturbated in the same room as them for at least a month after they had gone to sleep before realising that them…
The father says this is evidence of a concession of sexual interest in children.
The father also says at paragraphs 31 to 32 of his affidavit:
31. Both [W] and [X] have told me, more than once, about:
a. Seeing their mum being tied to a bed by "her collar' at night and that [Mr Bellerby] "lays on top of her".
b.That [Mr Bellerby] makes them wear dresses and paints their fingernails even when they tell him "no" .
c.They have been socially isolated from children other than [Mr Bellerby’s] children whom they say pick on them constantly.
d.That [Ms Duran] puts them outside at night if they misbehave and/or if they speak about me.
e. That [Ms Duran] punishes them by withholding food, toys, and hitting them.
f.That I am aware from my own direct observations as well as conversations with [Ms H], that [Ms Duran] has (just to highlight a few) told the children things like:
i. I'll call the police and they will shoot your dad.
ii. Your dad is going to gaol.
iii. Fuck you .. . you will regret this.
32.Regarding the dressing the boys in girls clothes, I have no issue with the children "playing dress ups”, but my concern is that it appeared to me that [Mr Bellerby] was forcing feminization on the boys for his own self-serving reasons and the boys have said they do not like it.
(Emphasis in original)
The issue is, as the father says, that Mr Bellerby does not appear to be permitting or assisting the children to explore gender identity but “making” them wear dresses and that in context he is worried that Mr Bellerby may have been feminising the boys, against their wishes, in line with Mr Bellerby’s own interests and for Mr Bellerby’s sexual pleasure.
I note that in the related case while Mr Bellerby agreed to orders for no time or communication, effectively, with his own child in the context of this evidence which was admitted in both cases, that was without any admissions or findings.
Nevertheless, it is clear that there is a prima facie case to be tried of whether or not Mr Bellerby is a person who, if the children spend time with him, poses a sexual risk to the children. I note that no positive findings are necessary and refer to the principles in Isles & Nelissen [2022] FedCFamC1A 97, and the concept of risk.
That is the first issue which is relevant to the voir dire evidence, and which makes it potentially relevant.
The second issue is whether or not the mother in this case is in a relationship with Mr Bellerby or bringing the children into contact with him, in particular unsupervised. Related to that is the factual dispute around whether she accepts that Mr Bellerby poses any risk to the children, and whether she has been complying with the terms of the interim injunction.
It is this latter issue which the photograph and the oral evidence taken on the voir dire go to.
I note that, again, there is relevant evidence in the two reports of Dr F, starting with the Family Report in the Bellerby case (Exhibit ICL 3).
Although Mr Bellerby and the mother in this case, Ms Duran, denied being in a relationship at the time of the Family Report interviews in the Bellerby case, it was noted that when interviewed Mr Bellerby’s older three children said:
125.All three children called [Ms Duran] their “step-mum” and referred to her [by a nickname]. All children reported that [Ms Duran] was the father’s girlfriend. One of the children reported that the father and [Ms Duran] had proposed to each other but were not married. One of the children reported a big sleep over with both families at the one house a few months ago. One of the children reported that [Ms Duran] and her children travelled to [City J] in their own car. All three children reported they see [Ms Duran] almost “every day” and one of the children reported [Ms Duran] and the father “kiss a lot” and things can take “forever” due to all the kissing. The information provided by the children in interview does not seem consistent with a relationship which ceased over a year ago.
126. One of the children reported that they did not like [Ms Stein] who all children identified as the father’s previous girlfriend. One of the children reported that they did not like [Ms Stein] because she was not letting them spend time with [Z]. One of the children reported that [Ms Stein] came to the house they were staying in the middle of the night and scared them and yelled at [Ms Duran].
127. None of the children raised any worries or concerns about [Ms Duran] or their father in interview.
128. All of the children reported [K] and [L] were nice children and raised no worries or concerns about [K] or [L] in interview.
129.All of the children reported they spend regular time with [W], [X] and [Y] and none of the children raised any worries or concerns about these children. [M] reported she really enjoyed spending time with [W].
It is clear that an inference may be available to be drawn that Ms Duran and Mr Bellerby were not being honest when they told the expert their relationship was over, and that this is potentially relevant to the father’s case that the relationship continues and that both Ms Duran and Mr Bellerby continue to be dishonest when they deny the existence of their relationship.
Further, the mother, during her interview with Dr F for the Family Report in these proceedings (Exhibit ICL 2) said:
48.Throughout her entire interview, the mother denied an ongoing relationship with [Mr Bellerby]. The mother reported the mother, the subject children, [Mr Bellerby] and their three children cohabitated together from May 2021 until April 2022. The mother reported in April 2022, she moved into a women’s refuge and sought her own accommodation. The mother reported she has changed rental properties on a number of occasions after the father and/or [Ms Stein] found her address. The mother reported she and [Mr Bellerby] were not in a current relationship, due to the ongoing Court cases and fear of retaliation from the father and [Ms Stein]. However, the mother clearly indicated she wants to return to an ongoing relationship with [Mr Bellerby], has a positive and strong view of [Mr Bellerby] and finds it difficult to accept any negative viewpoint regarding [Mr Bellerby]. The mother actively denied a polyamorous relationship with [Mr Bellerby] or any other person and denied a BDSM relationship with [Mr Bellerby], noting that [Mr Bellerby] did have a reported BDSM relationship with his previous partner, [Ms Stein]. It is no surprise that the mother in this matter shares [Mr Bellerby’s] negative view of [Ms Stein] and expressed reservations about [Ms Stein’s] mental health. The mother and [Mr Bellerby] admitted they obtained tattoos together but deny they are matching.
Further, the father gives evidence that the boys are indicating to him that in fact the mother is spending time with Mr Bellerby.
Given the prima facie case of sexual risk posed by Mr Bellerby to the children, which if found to be the case, would be, on any assessment, a very significant issue, and given the contested factual issue in the case as to whether or not the mother is in a relationship with or still bringing the children into contact with Mr Bellerby, I consider the evidence on the voir dire that Mr Bellerby was at the mother's house as recently as a few weeks ago to be potentially highly probative.
I consider, in particular, in a case where the Court is not considering the best interests of the adults, but is considering the best interests of children, and where the application is made, in effect, in the children's interests, that the interests of justice require that the evidence on the voir dire be admitted into evidence and be considered even though coming so late.
Before I finish, I will indicate, however, that to the extent necessary, this order may require a short adjournment, or some form of adjournment, if the mother requires time to meet evidence which was provided very late.
I note that this was not evidence from the father which was withheld but appears to be evidence of a friend and who is being helpful to the father. However, clearly it would have been better if it had been provided earlier, but the mother must have a reasonable opportunity to address that evidence.
Those are my reasons.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 3 March 2025
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