Farrington & Belkis (No 3)
[2024] FedCFamC2F 660
•14 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farrington & Belkis (No 3) [2024] FedCFamC2F 660
File number(s): CAC 924 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 14 June 2024 Catchwords: FAMILY LAW – PARENTING – long history of litigation between parties – expert psychologist described the contest between the parties as one of the highest levels of conflict he has seen and, in turn, the flow-on effects for the two children as one of the worst – findings by the Court against the Father of ongoing, relentless coercive and controlling behaviour – clear power imbalance between the parties due to age and current and former workplace positions – clear stalking behaviour by the Father including rummaging through the Mother’s re-cycle bins looking for “evidence” together with threats of more action against her in the future – Mother’s older estranged daughter from an earlier relationship weaponised against the Mother by the Father – police used in a form of harassment of the Mother in doing regular welfare checks one of which resulted in the Mother being charged with assault in relation to one of the children, and incarcerated overnight, yet these charges were later either not pressed or dismissed following findings adverse to the Father – Father made complaints to the Mother’s workplace that resulted in investigations against her but without any adverse findings – Mother and children in need of protection and “safe haven” from the Father’s relentless pursuit of them, including by the very regular filing of Applications in this Court – best interests and protective considerations require the children to live with their Mother who shall have sole parental responsibility and spend no time with the Father. Legislation: Evidence Act 1995 (Cth), ss.128, 130
Family Law Act 1975 (Cth) ss. 60CA, 60CC(3)(a) – (m), 65DAA
Cases cited: Allen v Flood [1898] AC 1
AMS v AIF (1999) 199 CLR 160
Australian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Bande & Cade (2011) 45 Fam LR 376
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Farrington & Belkis (Interim Change of Residence) [2023] FedCFamC2F 1076
Farrington & Belkis (Recusal Application) (No 2) [2023] FedCFamC2F 1343
Carter & Wilson [2023] FedCFamC1A 9
Clarke v Edinburgh and District Tramways Ltd 1919 SC (HL) 35
Collu & Rinaldo [2010] FamCAFC 53
Re Edelsten (Bankrupt): Donnelly v Edelsten (1988) 18 FCR 434
Fox v Percy (2003) 214 CLR 118
Giannarelli v Wraith (1988) 165 CLR 543
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Hoult & Hoult (2013) FLC 93-546
IMM v The Queen (2016) 257 CLR 300
Isles v Nelissen (2022) 367 FLR 338; (2022) 65 Fam LR 288
Kovac & Kovac (2024) FLC 94-185; [2024] FedCFamC1A 66
In the Marriage of Kress (1976) 13 ALR 309
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Lee v Lee (2019) 266 CLR 129
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Moose & Moose (2008) FLC 93-375
Muschinski v Dodds (1985) 160 CLR 583
Partington v Cade (No.2) (2009) 42 Fam LR 401
R v Richman [1982] Crim LR 507
In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230
Ramzi & Moussa [2022] FedCFamC2F 1473
Ressel & Morath [2023] FedCFamC1A 145
Ridgeway v R (1995) 184 CLR 19
Rondel v Worsley [1969] 1 AC 191
Rookes v Barnard [1964] AC 1129
Rosenberg v Percival (2001) 205 CLR 434
Sigley v Evor (2011) 44 Fam LR 439
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
U v U (2002) 211 CLR 238
Vakauta v Kelly (1989) 167 CLR 568
Vontek & Vontek [2017] FamCAFC 28
Witham v Holloway (1995) 183 CLR 525
Xuarez v Vitela [2012] FamCA 574
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
Black’s Law Dictionary (Seventh Edition) (ed. B.A Garner) (St Paul, MN: West Group, 1999)
Cassell’s Latin Dictionary (ed. D. Simpson) (New York: Macmillan Publishing Company, 1959, & 1968)
Lewis & Short, A Latin Dictionary, (Oxford: Clarendon Press, 1879, third impression 1987)
Osborn’s Concise Law Dictionary, Ninth Edition, 2001
Stroud’s Judicial Dictionary of Words and Phrases (Seventh Edition) Vol.1
B. Fisse, Howard’s Criminal Law, (Fifth Edition) (Sydney: The Law Book Company, 1990)
S. Bronitt & B. McSherry, Principles of Criminal Law (Fourth Edition) (Sydney: Lawbook Company, 2017)
Meagher, Gummow & Lehane’s Equity: Doctrine & Remedies (5th Edition) (J.D. Heydon, M.J. Leeming, P.G. Turner) (Sydney: LexisNexis Butterworths, 2015)
The Law of Torts in Australia (Fifth Edition) (K. Barker, P. Cane, M. Lunney, F. Trindade) (Melbourne: Oxford University Press, 2012)
G. Williams, Criminal Law: The General Part (Second Edition) (London: Stevens & Sons Limited, 1961)
Division: Division 2 Family Law Number of paragraphs: 479 Date of last submission/s: 15 March 2024 Date of hearing: 16 & 17 March; 18, 21 & 28 April; 1 May; 28 June, 16 August; 15 December 2023 Place: Canberra Counsel for the Applicant Ms G Jardine (at the hearing in March 2023); thereafter the Applicant was self-represented at hearings throughout the remainder of 2023; at the resumed final hearing on 15 December 2023, the Applicant Father was represented, on a direct brief, by Mr Shaw of Counsel Solicitor for the Applicant Gilbert & Partners (until May 2023) Counsel for the Respondent Mr J Haddock Solicitor for the Respondent Bevan & Co Independent Children’s Lawyer Legal Aid (until August 2023); thereafter
Robinson + McGuinness Family LawORDERS
CAC 924 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FARRINGTON
ApplicantAND: MS BELKIS
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
14 JUNE 2024
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.All previous Orders in relation to parenting be discharged and dismissed.
2.Excepting any Applications/Response material regarding property matters, all outstanding Applications in relation to parenting matters be dismissed.
3.The Mother have sole parental responsibility for X (born in 2011) and Y (born in 2012) (‘the Children’).
4.The Children shall live with the Mother.
5.The Children shall spend no time with the Father.
6.The Father be restrained by injunction from approaching the Children, directly or indirectly, including at their schools.
7.The Father be restrained by injunction from any contact with the Children, directly or indirectly, including through their older sister, M (born in 2007), or by electronic means or social media.
8.The Mother is restrained from denigrating the father in the presence of the Children.
9.The Mother shall continue to engage with B Organisation, or other appropriate treatment as required.
10.The Mother shall do all things necessary to enrol the Children with, or ensure that the Children continue to engage with, an appropriate psychologist for regular treatment as required to assist the Children in their compliance with these orders.
11.Within 12 months from the date of these Orders, the Father be restrained from filing any further Applications in this Court that replicate any Application made by him or on his behalf over the last 18 months, without prior leave of the Court.
AND THE COURT FURTHER ORDERS THAT:
12.Within 45 days, being by 29 July 2024, the Applicant is to pay the costs of the Respondent of and incidental to the Contempt Application filed on 23rd February 2024 and withdrawn on 24th February 2024, fixed in the sum of $5,500.
13.Within 45 days, being by 29 July 2024, the Applicant is to pay the costs of the Independent Children’s Lawyer of and incidental to the Contempt Application filed on 23rd February 2024 and withdrawn on 24th February 2024, fixed in the sum of $832.48.
14.All extant property applications are adjourned to the Judicial Registrar’s List on 30 JULY 2024 at 10:00AM for First Return, to occur via Microsoft Teams.
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
A. Introduction
[1]
B. Coercion & control
[28]
C. Recent history of the litigation: an annotated chronology
[38]
D. Applicant’s orders sought
[117]
E. Respondent’s orders sought
[120]
F. Independent Children’s Lawyer’s orders sought
[121]
G. The Father’s oral evidence: March 2023
[122]
Oral evidence of Ms Marie Gilbert
[205]
H. The Father’s Oral evidence (continued)
[209]
I. The Mother’s oral evidence: March 2023
[213]
J. The Report of Mr F
[227]
K. Mr F’s oral evidence: March 2023
[228]
L. Principles of evidence
[248]
M. Consideration of the March 2023 evidence
[260]
N. Oral evidence in April 2023
[265]
O. The Mother’s Oral evidence: April 2023
[266]
P. The maternal Grandfather’s oral evidence
[291]
Q. Oral evidence of Mr F
[302]
R. Consideration of the April 2023 evidence
[326]
S. The Report of Ms O
[329]
T. Written submissions on behalf of the Applicant: Part A
[330]
U. Written submissions on behalf of the Respondent
[331]
V. Independent Children’s Lawyer’s Written Submissions
[332]
W. Brief observations on submissions
[334]
X. The hearing and Orders of change of residence in August 2023
[336]
Y. The Directions Hearing: 5th December 2023
[338]
Z. The Father’s evidence: December 2023
[350]
AA. The Mother’s oral evidence: December 2023
[374]
AB. Oral evidence of Ms E (CYPS): December 2023
[385]
AC. Consideration of December 2023 evidence
[398]
AD. The Father’s Contempt Application against the Mother: February 2024 & beyond
[405]
AE. Submissions regarding costs and the Contempt Application
[409]
Submissions of the Applicant Father, 15th March 2024
[410]
Submissions of the Respondent Mother, 7th March 2024
[410]
Submissions of the Independent Children’s Lawyer, 15th March 2024
[410]
AF. Contempt Application & Costs: principles and consideration
[410]
AG. Contempt Application: Consideration & determination
[416]
AH. Parenting: Outline of principle
[432]
AI. Consideration and disposition
[449]
JUDGE W J NEVILLE
A. Introduction
This parenting matter concerns the making of Orders that, pursuant to s.60CA of the Family Law Act 1975 (Cth) (“the Act”), are in the best interests of X, who is 13 years of age (born in 2011) and 12 year old Y (born in 2012).
Final parenting Orders were made by consent on 4th September 2019 (“the 2019 Orders”). Those Orders provided that the parents had equal shared parental responsibility, and for regular time for the children with each parent. At that time, the Mother was self-represented, and the Father had legal representation. For information and context, the Father (who is retired from the defence forces; he has, or had, a diagnosis of PTSD arising from his service overseas) is aged 54 years; the Mother is aged 36 years. The age difference is not unimportant – as discussed later in these reasons. The Mother works as a public servant.
On 10th May 2021, the self-represented Father filed an Initiating Application in which he sought Orders to amend the 2019 Orders. The Mother’s Response was filed on 13th June 2021, in which she sought that she have sole parental responsibility for the children, and that they spend only supervised time with the Father.
Pursuant to Orders made on 16th June 2021 for the appointment of an Independent Children’s Lawyer (“ICL”), Ms Cruise from the Legal Aid Office, filed a Notice of Address for Service on 24th September 2021. As noted later in these reasons, after not insignificant contest between the ICL and the Father in 2023, which included allegations of bias against her, and after multiple final hearing days earlier in the year, on 3rd August 2023 Ms Cruise ceased acting as ICL and Mr Robinson took up those cudgels on 14th August 2023. He appeared at the final dates of the hearing in December 2023. He remains ICL in the matter.
An Amended Response was filed by the Mother on 2nd September 2021, which relevantly included property Orders.
On 21st April 2022, psychologist, Mr F, filed an Affidavit which attached his detailed Report. That Report became Exhibit F1.
In response to questions from Counsel for the ICL, in the course of his oral evidence Mr F disturbingly commented (emphasis added):[1]
[DR FF]: [Mr F], you’re aware that this is a high conflict situation that the children have been caught in the middle of, to what you set out in your report to be a significant mental health detriment. Is that a fair description of what you would say your understanding of the matter is?‑‑‑That is, [Dr FF]. I can – if it’s any assistance to the court, I would, you know, potentially, rate this as one of the highest levels of conflict I’ve seen in a coparenting relationship and these children have been impacted, probably, the most that I have seen by the emotional consequences of the conflict between the parents.
[1] TB 4
To state the obvious: such an assessment was (and is) tragic and alarming for everyone, especially the children.
A Child Impact Report was sought and obtained, dated 28th September 2022, from Ms O. This Report became Exhibit A.
An early indication of the concerns of the Court about the level of conflict between the parties and the embroilment of the children in it appears in the Notation to the Orders made on 3rd August 2022, pursuant to which the ICL was requested to explain to the children the effect of the Orders then made. The Orders, which were effectively supplementary, and amendments, to the Consent Orders of September 2019, among other things provided for a “week-about” arrangement for the children spending time with the parents. Significantly, the Orders also provided for restraints on both parents from discussing the litigation with the children, and also (Order 4(b)) from recording any conversation(s) with the children.
Following the Father not returning the children to the Mother’s care, on 19th January 2023, the Mother filed an Application in a Proceeding (together with a supporting Affidavit) seeking urgent relief, among other things, discharging all previous Orders, for the children to live primarily with her, that she have sole parental responsibility, and that the Father spend supervised time with the children for 2 hours on alternate Saturdays. Orders were made on 24th January 2023 requiring that the children be returned to the Mother’s care together with some “transitional Orders” consequent upon the Father withholding them from the Mother. The Orders also provided that, once a period of settling the children back into the Mother’s care for approximately two weeks was completed, the week-about arrangement was to be resumed.
Two Affidavits, both dated 23rd February 2023, sworn by the Mother and the maternal Grandfather, were filed for the purposes of the substantive Hearing. It is sufficient, for present purposes, simply to note that the Grandfather and the Applicant Father, Mr Farrington, have a determinedly hostile relationship based upon, among other things, the accusatory and derogatory expressions in the Father’s correspondence with the Mother in which he refers adversely, in very strong terms, to the Grandfather.[2] Indeed, in his evidence on the first day of the trial (detailed later in these reasons) he stated that the Grandfather’s object was to seek “revenge” against him.
[2] See, for example, p.192 of the Mother’s Affidavit, filed 23rd February 2023 (email from the Father to the Mother, dated early 2023).
This summary of early procedural matters provides something of a quick litigious appetiser for the unappetising and regularly dispiriting (and unedifying and gruel-like) smorgasbord of litigious fare that unfortunately consumed the parties and the Court throughout 2023 and beyond. Using the somewhat bitter and ironic words of President Snow from The Hunger Games (a reference made also in earlier judgments), the litigation, more so than many other matters, involved a constant series of “moves and counter-moves.” Indeed, the myriad of Applications, appeals, Affidavits, and all else (in this Court and in other Courts), seemingly if not in reality consumed the parties, the ICL (on which more later), and the Director-General of Care and Protection Services (“CYPS”). It certainly consumed the Court significantly more than most other matters throughout 2023 and beyond. One can only hope that these reasons might bring, if not finality (there are property matters yet to determine but which will necessarily be before another Judge), at least some respite for all, parents and the children most particularly.
Initially, the final hearing took place over two days on 16th and 17th March 2023, with a further two days of evidence taken on 21st and 28th April (plus an occasional directions hearing in between). Orders were then made, which set out a time-table for the filing of submissions. In the usual course of litigation, with the evidence now having concluded, and with submissions only to be filed, the matter should then have finalised. As the history of the litigation set out below records, this was not to be with so many other Applications filed by the parties, but primarily by the Father, who became a self-represented litigant in late May 2023.
In oral reasons delivered on 1st May 2023, I recorded that, between December 2022 and 29th March 2023, there had been 10 Applications filed, which included multiple objections to subpoenæ. All of these Applications were filed by the Father. Between April 2023 and February 2024, there were 14 further Applications in this Court, 11 of which were filed by the Father; and 3 Applications/Appeals to the Full Court, all of which were either dismissed or withdrawn. Various Applications either directly or by the police were taken out in Court against the Mother in mid-2023, arising from “information” provided in part by the Father, which led to her arrest and incarceration overnight. Ultimately, the various criminal charges against the Mother were dismissed or determined in her favour in late 2023, and a final Apprehended Violence Order against the Father was made in late 2023.
Four judgments were delivered by this Court in 2023: (i) 1st May dismissing objections by the Father to certain subpoenæ; (ii) 28th June regarding the re-opening of evidence; (iii) 4th August regarding the Father seeking to change the primary residence of the children, (based upon an extensive Report/Appraisal from CYPS dated mid-2023, the interim Orders of the Court were for the children to live with the Mother, that she have sole parental responsibility, and that the children spend no time with the Father); and (iv) 19th October regarding the Father’s Application for my recusal, which was declined.
The objections to subpoenæ were primarily by the Father, which had been directed to the Z Authority and to W Authority, seeking documents primarily in relation to the Father’s medical history. Among other things, the Father claimed a public interest immunity privilege under s.130 of the Evidence Act 1995 (Cth). No such claim was made by either authority, a relevant factor under that Act and according to case law, which tended to undercut the Father’s contentions and objections regarding such immunity. He also contended later that he could not give evidence regarding certain deployments overseas because he had been working for a foreign country, and likewise was treated for an injury in another country, which also meant that there would be no relevant records in authorities files here. He further contended, in somewhat broad and unspecified terms, that there was a risk to the “national interest” regarding any documents that were obtained from the authorities mentioned, but this was in circumstances where the Mother and ICL only sought to access his medical records and sought nothing regarding potential matters of national security. Regrettably, elements of hyperbole (and not a few other matters) were not uncommon in the Father’s material and submissions, which is perhaps not completely surprising given that he was, and largely remains, self‑represented.
As noted later in these reasons, the Father consistently misunderstood the practices and procedures of the Court despite having been legally represented on a number of occasions. Presumably, this would normally or usually have meant that he (a) would typically have discussed matters of procedure and evidence with them, and (b) would certainly have observed over the course of the long-running litigation what often, or more regularly, happened in and out of Court. On one occasion (16th August 2023) he mistakenly and otherwise inaptly likened or equated Court processes to “command and control” operations in the defence forces (and alluded to similar military thinking in relation to parenting). His misunderstandings extended to thinking that the Court “commanded and controlled” the actions of all lawyers that came before the Court in their daily practice, and equally did so regarding how those lawyers conducted themselves away from the Court, such was the mis-conceived but constantly [mis‑] perceived “reach” of the Court in its authority and practice and procedure.
While the focus of the Court must be on making Orders that are in the best interests of the children, the way the matter was conducted very often put the Father, rather than the children, at the centre of attention. Deliberately or not, (a) in regularly having an almost laser-like focus on the Mother and her alleged faults (as a Mother and as a person – e.g. he insisted that she was/is an inveterate liar), (b) a not dissimilar focus if not pre-occupation on the Court and me (as presiding Judge) in particular, (c) while she was in the proceeding, the original ICL, Ms Cruise, likewise received constant and regularly ill-informed attention,[3] and (d) an insatiable propensity to seek to involve in the current proceeding the Mother’s older, estranged almost adult daughter from a previous relationship, M (born in 2007), with whom the Father appears to have constant communication (M lives in City GG) which he regularly shares with the Court, the Father made himself a person of singular focus.[4] Unfortunately, the Father’s pre-occupations and predilections mentioned (sans Ms Cruise) continue to the present time in the light of his ongoing correspondence with the Court and improper filing of documents, post-hearing, in which he continues to raise matters and material canvassed in evidence during the peripatetic, or sometimes meandering, trial. The evidence, of course, was closed at the end of the trial on 15th December 2023.
[3] At one stage in the litigation, the Father suggested that it was well known that Ms Cruise had untrammelled and privileged access to my Chambers. When asked where or how the Father obtained such scandalous information, he advised that it came from an unnamed police officer. Such astonishing and reprehensible comments, in my view, showed not for the first time with others set out in the course of his evidence, how skewed if not troubled the Father’s thinking is. (T 57 – 59 of the ‘Recusal Hearing Transcript’ of 16th August 2023)
[4] Rulings were made on 17th March 2023 refusing the Father’s Application to adduce evidence from M’s family regarding M and in the light of that evidence the “unacceptable risk” for the current children living or spending time with the Mother. There was no appeal regarding those rulings. The Mother in the current proceeding contended that the relationship with M’s Father was an abusive and controlling one. Given the estrangement between the Mother and M, and given the frequency with which the Father sought to inveigle M’s comments into the current litigation, notwithstanding the Court’s ruling in March 2023, as an observation only, M is seemingly quite the hostile person towards the Mother (which view seems to be aided and abetted by the Father), and who in consequence, is hardly likely to be, on the Father’s material (but which is not accepted into evidence), a benign and positive influence on X and Y. Even as recently as March 2024, in further correspondence with the Court, the Father improperly continued to refer to material from M. Plainly and unhelpfully, he has difficulty in accepting, and following, Court rulings. Simply as an observation, given the similar “world-views” of both M and the Father regarding the Mother, it is more likely than not that they effectively fuel each other’s antagonism towards the Mother and likely scheme against her.
For the reasons that follow, and accepting the force and strictures contained in them, the Orders sought by the Mother as supported by the ICL (and also generally supported by the Director-General, but with small modification; the Director-General had intervened earlier in the proceeding and had became a party), in my view, are in the children’s best interests.
In making the “no time” Order as sought by the Mother, I am acutely conscious of the Court’s responsibilities (a) to ensure that the course of reasoning shows clearly how and why the Court has reached such a stark conclusion, and (b) also to consider any ameliorating conditions that might otherwise sufficiently protect the children and the Mother from the Father’s coercive and controlling conduct other than the Order that there be no time spent between the Father and the children. These responsibilities are spelt out in two recent Full Court decisions: Bielen & Kozma and Kovac & Kovac.[5]
[5] Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221; Kovac & Kovac (2024) FLC 94-185; [2024] FedFamC1A 66.
The extensive reasons below show, in my view, that the limited options to assist the Father, for example, counselling and/or therapy, and/or supervised time with the children, is highly unlikely to change his completely negative and condescending view of the Mother, or his tactical responses to pursue her, whether it is rummaging through her recycle bins for “evidence” of her alcohol use, the threatening emails, his untrammelled and vituperative hostility towards the paternal Grandfather (with whom the Mother lives), and the relentless use of the Mother’s estranged daughter M against her.
Further, in my firm view, the evidence makes plain that the Mother has effectively, and often actually, lived her life, at least over the last 18 months (and somewhat earlier), under a state of siege – mentally, emotionally and psychologically. There are elements of financial control, such as the Father insisting on reimbursement of paltry sums of money from the Mother regarding the children’s haircuts.[6] She has been subjected by the Father to a barrage of incessant Applications to the Court (noted above and in the sorry history of the litigation set out in detail in the next section of these reasons), even more harassing correspondence from him, relatively regular police welfare checks on the children at her household, a late-night police attendance (in mid-2023) that resulted in her arrest and incarceration overnight but where the charges were later either withdrawn or dismissed, and belittling and stalking behaviour, which included having her recycle bins regularly searched for “evidence” regarding her alleged abuse of alcohol. A number of these matters were admitted in a quite caustic, sarcastic and bitter email by the Father to the Mother in early 2023, which also promised further action against her. In my view, over a significant and extended period of time, his conduct was (and remains) oppressive, coercive and controlling of the Mother.
[6] See also the Father’s Orders Sought at pars. 20-23 (set out below) where he seeks reimbursement from the Mother for a wide range of costs relating to the children, and various “penalties” if there is not compliance with such payment.
In the light of the Father’s conduct towards the Mother, and given how long the children have been involved in the bitter contest between their parents, they have had no safe haven, or been properly quarantined from it. Such was noted in the Orders of the Court in August 2022. The parents having failed significantly in being able to protect the children from the co-parenting warfare (which, regrettably, is what it is), and in the light of the Father’s relentless and oppressive pursuit of the Mother, regrettably, the Court must take the only course available to it to ensure, as far as possible, that there is genuine and long-term respite for, and protection of, the children as well as their Mother. The ICL, and for the most part, likewise the Director‑General, support the Mother’s Application. On the evidence before the Court, there are no viable or ameliorating alternative options available to the Court. For example, the Mother’s evidence (supported by relevant records from the contact centre) confirm that supervised time between the Father and the children has been used by him to speak with one or more of the children which was, or became, a subtle form of inquisition and much else. The pressure on the children has been as unrelenting as it has been on the Mother.
Two other matters need to be noted here and addressed before anything else.
First, for context, and also for further insight into the parties that is somewhat different but still complementary to their oral evidence, an annotated history of the litigation throughout 2023 and beyond needs to be recorded. A more summary chronology is annexed to these reasons.[7] Both of these documents, in effect, allow the overview and flow of Applications and events, as it were, to speak for themselves with little comment regarding the relentless nature of the litigation and the almost incessant pursuit of the Mother by the Father using the Court processes.
[7] Annexure A
Secondly, before proceeding, and importantly in the light of (a) the evidence set out in detail over a long period, and (b) the Court’s findings in relation to this evidence, for context and a central part of the jurisprudential lens through which it must be assessed, I need to set out some matters (statutory and other) that define and provide important reference points regarding “coercion and control” under the Act before setting out the annotated chronology.
B. Coercion & control
Section 4AB of the Act defines “family violence” in the following terms (italicised emphasis added; other emphasis in original text):
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The recent Full Court decision in Carter & Wilson briefly considered this section and some case-law regarding it.[8] For example, at [13], the Court referred to a decision of this Court in Ramzi & Moussa where her Honour, Judge Beckhouse, stated, at [45] that, in the context of conduct that was not inherently violent or threatening, “generally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member.”[9] Both Courts stressed the importance of the “context” of the conduct addressed.
[8] Carter & Wilson [2023] FedCFamC1A 9.
[9] Ramzi & Moussa [2022] FedCFamC2F 1473.
The Full Court went on, at [14] and [15], and also in the separate judgment of Bennett J at [73] – [84], to refer to authorities in Canada and the United Kingdom, and in the reasons of Bennett J, to some extra-curial writings on the subject. Her Honour noted in particular that “intent” was not a pre-requisite or necessary component for the Court to make relevant findings regarding coercion and control for the purposes of the section.
The authorities to which I have referred also noted some dictionary definitions of “coercion” and “control”. For completeness, I note that the Shorter Oxford English Dictionary (which does not appear to have been used in earlier judgments), defines “coercion” to include (a) a constraint, restraint, compulsion, and “the controlling of a voluntary agent or action by force”, and (b) “the faculty or power of coercing or punishing; the power to compel assent.”
These and other dictionary definitions are all based upon the foundational understanding of the Latin verb, coercere, which means, fundamentally, to enclose, to limit, or to shut in. Other basal and critical understandings comprehend meanings such as to confine and to repress – literally and figuratively.[10]
[10] See Lewis & Short, A Latin Dictionary, (Oxford: Clarendon Press, 1879, third impression 1987) 359 – 360; Cassell’s Latin Dictionary (ed. D. Simpson) (New York: Macmillan Publishing Company, 1959, & 1968) 114.
Further to this, thus far, there seems to have been nothing noted, or considered definitions, from legal dictionaries, which unsurprisingly, usually do so from the perspective of, or reference to, the criminal law, which I note a little later in these reasons. Thus, from the United States, Black’s Law Dictionary distinguishes between “criminal coercion”, on the one hand, and on the other, “conduct that constitutes the improper use of economic power to compel another to submit to the wishes of one who wields it.”[11]
[11] See Black’s Law Dictionary (Seventh Edition) (ed. B.A Garner) (St Paul, MN: West Group, 1999) 252. Stroud’s Judicial Dictionary of Words and Phrases (Seventh Edition) Vol.1, respectfully adds little to the discussion, simply referring the reader to an older authority of the House of Lords in Allen v Flood [1898] AC 1 at 98 – 105, in part of the judgment of Lord Watson, where his Lordship spoke about the need for “wrongful coercion” to relate to a “wrongful act” which was prompted by a “bad motive.” The learned editors of Osborn’s Concise Law Dictionary, Eleventh Edition, 2009 at 90-91, likewise offer only a summary of the previous, and now removed by statute, presumption of the Wife being the subject of coercion of her Husband in the commission of an offence.
In addition to such matters, I note the following to highlight that there is a long and significant jurisprudential history, across a range of areas of the law (e.g. crime, contracts, torts, and equity) where these basic concepts of “coercion” and “control” but especially the former, have likewise played (and continue to do so) important roles.
For example, in equity, “coercion” has generally been accepted as part of the doctrine of, or principles relating to, “undue influence.”[12] In the area of torts, coercion is part of the spectre of “intimidation.”[13]
[12] Generally, see Chapter 15, “Undue influence” in Meagher, Gummow & Lehane’s Equity: Doctrine & Remedies (5th Edition) (J.D. Heydon, M.J. Leeming, P.G. Turner) (Sydney: LexisNexis Butterworths, 2015).
[13] Among many places, see the House of Lords’ famous decision in Rookes v Barnard [1964] AC 1129, and Section 6.8.1 “Intimidation” in The Law of Torts in Australia (Fifth Edition) (K. Barker, P. Cane, M. Lunney, F. Trindade) (Melbourne: Oxford University Press, 2012).
Perhaps the most proximate area that has considered the subject of, and actions relating to, coercion is in criminal law. The classic text by Glanville Williams, Criminal Law: The General Part, treats “duress and coercion” in Chapter 18.[14] For current, comparative and contextual, purposes, and hopefully educative purposes also, I need only note that Williams referred to coercion as a form of “duress”, and recorded that, initially at least, the law did not recognise moral coercion, undue influence or economic coercion as a defence under the criminal law at that time. He also noted that in earlier times, and prior to removal by statute, there was a presumption that a Wife who committed certain offences did so under the control and general thrall of, and in “obedience” to, her Husband, known as “marital coercion.” Mercifully, times have changed, and statute has over-turned that presumption. Williams went on to record that there were cases in the 1940s and 1950s that accepted that “moral coercion” came to be recognised by the law, but in circumstances where coercion was tantamount to meaning the same as duress.[15]
[14] G. Williams, Criminal Law: The General Part (Second Edition) (London: Stevens & Sons Limited, 1961).
[15] From an Australian perspective, see also, Howard’s Criminal Law, (Fifth Edition) (B. Fisse) (Sydney: The Law Book Company, 1990) Chapter 6 “General Concepts of Responsibility” D. Compulsion – Duress & Coercion, pp.539 & 553. More recently, see S. Bronitt & B. McSherry, Principles of Criminal Law (Fourth Edition) (Sydney: Lawbook Company, 2017) Chapter 6 “Self-Help Defences”, especially pp.376-377 “Meaning of Coercion”. The authors here note, among other things, a statutory definition of “coercion” under the Victorian Crimes Act 1958, s.336(3), as well as case law that now recognises broader threats to include economic and moral pressure. See R v Richman [1982] Crim LR 507.
Lest there be any doubt or confusion, for the purposes of what follows, my principal points of reference are to the text of the Act itself, and the remarks of the Full Court in Carter & Wilson and the references to various definitions therein. Should it become necessary to refer to any other, related dictionary definition, it will be noted. Matters of history and from other areas of jurisprudence are not, without more, relevant to the considerations and decision of the Court here. The matters recorded above are simply for historical and jurisprudential context.
C. Recent history of the litigation: an annotated chronology
Following on from what has been set out above, the litany below obviously highlights the acrimony between the parties and the deeply bitter contours (and depth) of the relentless dispute. More specific matters were also obviously canvassed in the course of the various iterations or stages of the final hearing, which took place at semi-regular intervals throughout 2023 (supplemented by some further contests early in 2024), both in the cross examination of the parties (and others) and arising out of the further, diverse Applications that were filed, almost invariably by the Father, each of which necessarily resulted in delay in finalising the parenting Orders.
For completeness, I should note that, in the Consent Orders made by a Senior Judicial Registrar on 8th September 2021, any issues relating to the application of the principles in Rice & Asplund were adjourned until after receipt of the Family Report. As matters transpired, with both parties seeking amendment, in some instances very substantial amendment, to the Orders of September 2019, any such issues arising from those principles effectively became moot.
The first tranche of documents from CYPS was produced on 3rd March 2023, which included appraisals of the two children, and confirmed that there was suspected “emotional abuse” of the children at that time. At p.100 of this collection of material, CYPS recorded:
There is a substantial history with both [Region U] and NSW Child Protection. There have been 22 Child Concern Reports (CCR) received by Child & Youth Protection Services (CYPS) in relation to [X] and [Y] since 2014, with this being the first and only intervention and no substantiation, so far.
The conclusion by CYPS was that both parents were responsible for “emotional abuse” of both children.[16] Notwithstanding this determination, CYPS closed its case at that time.
[16] See CYPS March 2023 Appraisal, at 110.
The Father responded, “in kind”, with a lengthy Affidavit, affirmed on 3rd March 2023. On 7th March 2023, the Father filed an Application in a Proceeding seeking to have the matter transferred to the Court known colloquially as the “Division 1 Court.” A separate Affidavit in support of this Application was filed on the same date. The basic ground for seeking a transfer, among others, related to what were asserted (at par.14) to be the complexity of the “legal, factual and risk issues involved” in the matter.
Because it was such a discrete issue, I need only record that the transfer Application was dismissed on 10th March 2023 on grounds, among others, that all parties knew the issues when the matter was first filed in 2021, therefore, it was not appropriate now, quite sometime later, to contend that, somehow, the issues effectively had become “complex.” Costs were reserved. The matter was listed for final hearing for 2 days commencing on 16th March 2023.[17]
[17] I need only note and not otherwise discuss, the Father continued to file various Affidavits from persons associated with the Mother’s estranged daughter, M, with whom the Father has a close relationship and from whom he seemingly, and regularly, obtains information about the children. Such matters and documents became, for a short while, the subject of argument and ruling by the Court. In short, they were not allowed to be used in the current proceeding. I also do not propose recording the multiple subpoenæ, objections thereto, and any rulings, unless dealt with in the course of the evidence proper. The ongoing discussion with M by the Father of matters relating to the children in the current matter, in my view was not only inappropriate on multiple levels, but as noted later in these reasons, a likely or potential breach of s.121 of the Act.
On 8th March 2023, the Father filed an Amended Initiating Application in which he sought a refined version of parenting Orders, as well as various Orders in relation to property. This Application sought Orders for equal shared parental responsibility but that the children should live primarily with him. This Application had annexed to it a copy of an Interim Family Violence Order made in Region U Court in the Mother’s favour against the Father, dated early 2023. The Application also sought certain Orders that were inappropriate, such as a departure Order under s.117 of the relevant Act (further details being unnecessary), and also that the parties enter into a “Binding Financial Agreement [“BFA”] with the Child Support Agency” [sic] presumably either the Father and/or his then solicitors were seeking to refer to a [binding] child support agreement, as opposed to a BFA.
On 9th March 2023, the Mother filed an Amended Response in which she sought Orders for the children to live with her, that she would have sole parental responsibility, and the children spend no time with the Father.
On the same date, the Mother filed a Case Outline which contended, among other things, that (a) the Father had changed his case, without notice, only two days prior to the interim hearing, and (b) the Father had engaged in a significant history of financial control of the Mother, electronic monitoring and physical assault. There were 18 grounds of attack on the Father’s Orders sought, which included, at par.4(r), a contention that the Father’s then lawyers had engaged in inappropriate conduct that was designed to intimidate the Mother and had also engaged in conduct that amounted to “blackmail.” The Case Outline also noted (p.7) that the Father had admitted to breaching undertakings given to the Region U Court and had confirmed in writing that he had regularly inspected the Mother’s rubbish bins with a view to obtaining “evidence” of her drinking problem. This led, it was contended, to a claim of the Father’s actions being designed to “intimidate, coerce and control the Mother.” As noted above and later in these reasons, such a conclusion on the evidence was proper and almost inevitable.
The ICL’s Case Outline, filed the same date, made similar but more abbreviated comments. At par.36 of this Outline, the ICL noted that since the commencement of the proceeding in May 2021, the Father had brought 8 Applications and 1 Appeal. She submitted that the Court may consider restraining the Father from filing further Applications.
The Father’s Case Outline was filed on 14th March 2023.
Also on 14th March 2023, an Appeal Registrar published reasons and made Orders to dismiss the Father’s Application in an Appeal in which he sought an extension of time to file a notice of appeal, among other things. The Appeal Registrar dismissed the Father’s Application, with costs, determining that (a) the subject of the proposed appeal was not appellable, and that (b) no substantial issue in the appeal was established.
On 16th March 2023, the ICL provided the Court (and the parties) with a “proposed joint chronology” and Tender Bundle. The matter did not finish and went “part-heard”, with the resumed final hearing fixed for 21st April. On 17th April 2023, the ICL provided a further Tender Bundle.
On 28th April 2023, at the conclusion of further evidence, the Court made Orders to provide for a timetable for the filing of submissions regarding parenting, and also for the parties to advise the procedural course regarding property matters.
On 4th May 2023, procedural Orders were made regarding property issues, and upon compliance, noted that a date for a conciliation conference would be fixed.
The Father filed written submissions regarding parenting Orders on 24th May 2023. The Mother filed her submissions on 9th June.
On 25th May 2023, the Mother filed an Amended Response, confirming the parenting Orders sought for the children to live with her, that she have sole parental responsibility, and that children spend no time with the Father (and that he be restrained from “all contact” with the children). The Mother also specified her property Orders sought. The Mother’s Affidavit in support of this Application, filed on the same date, was largely confined to property matters.
In mid-2023, the Mother was charged with a range of family violence matters that were set out in an AS Authority Statement of Facts. The events in question involved the child X.
In American football, there is a term called “broken field running”, which refers to completely unstructured, and unpredictable, offence and defence. Procedurally, “broken field running” aptly describes what happened next.
On 16th June 2023, both parties filed Applications in a Proceeding (by this stage, the Father was a self-represented litigant). The Father’s Application sought that the Mother be “held in contempt” for a range of alleged breaches of Orders and that he have sole “custody” of the children but for the Mother to have supervised time with them. As is his wont, his supporting Affidavit contained the “facts” upon which he relied, and also a series of legal submissions. This was, and became more so, a feature of his material. It was concerning because the Court regularly tried to advise him what should, and what should not, be included in Affidavits, notably that submissions were always meant to be done separately.[18]
[18] The Father filed two Affidavits at this time, one in relation to property matters, the other in relation to parenting issues. Again, from par.66 and following, the Father’s Affidavit contained legal submissions, principally, as is his way despite ongoing “advice” from the Court, being his untutored and often inapposite “narrative” of various cases. Should it need to be noted, the Father is not legally qualified or trained. Unsurprisingly, and without being hyper-critical, often the cases he cited did not assist his case. Moreover, the Father, as he did here, regularly annexed many documents that had already been filed in the proceeding. Such multiplication was (and is) unhelpful. On this date, the Father also filed a Notice of Child Abuse, Family Violence or Risk.
On the same date, the Mother sought a recovery Order for the children to be returned to her care.
On 20th June, the ICL filed brief submissions in which she sought, among other things, that the matter be re-opened so that additional evidence could be adduced, and that the Director‑General be invited to intervene in the litigation. At this time, CYPS was undertaking a further appraisal of the matter. The ICL sought to formalise any complaints by the Father against her, seeking Orders that any Application for the ICL’s discharge be filed by 30th June.
On 21st June, the maternal Grandfather filed a supporting Affidavit.
The Court was provided with a further appraisal from CYPS, filed 22nd June 2023.
On 22nd June, both parties filed brief submissions regarding the procedural course to be undertaken, in view of latest developments. On the same date, the Father filed three Affidavits responding to the Grandfather’s, and the Mother’s, Affidavits.
On 23rd June, among other things, the Director-General advised of the intention to intervene.
On 28th June, the Court delivered brief oral reasons regarding the procedural course, including joining the Director-General as a party to the litigation. Orders were made granting the ICL’s “Application” to re-open the proceeding. The Court dismissed the Applications in a Proceeding filed by both parties on 16th June and made further parenting Orders. The Father confirmed that he did not propose to file any Application to seek to discharge the ICL. The Director-General advised that the current appraisal underway by CYPS would be completed in 3 weeks.
On 29th June the Mother filed submissions regarding the procedural course in relation to property matters.
Procedural Orders were made in Chambers on 10th July 2023 for the filing of limited material for the re-opened final hearing.
On 13th July 2023, the Father filed an Amended Initiating Application regarding property matters, as well as submissions regarding the course he proposed for such matters. Some parenting matters were briefly touched on as well.
On 26th July, the Court made Orders for the release of the CYPS appraisal report (of 211 pages, dated mid-2023; ultimately, this Report/Appraisal became Exhibit CYPS2) and included a restraint on disclosure of any of it to the children or any other person.
Also on this date, the ICL filed an Application in which she sought Orders that she be discharged. Her Affidavit, affirmed on 24th July 2023, set out the circumstances that gave rise to her Application. These essentially related to conversations she had with Y, who rang the ICL on 21st July 2023, and a series of troubling emails that followed. Following this call, the ICL made a Child Concern Report to CYPS. The Case Worker involved, Ms E, contacted the ICL to seek further information about the call with Y. There followed six emails from the Father to either the ICL or to Mr N (on behalf of the Director-General), and various responses from them to the Father. The Mother’s lawyer later became involved. According to her Affidavit, the correspondence between the ICL and the Father commenced at 1.06pm and concluded at 3.10pm on the day in question. At par.18 of her Affidavit, the ICL stated: “At 3.26pm, I sent an email to all parties indicating that, given what had occurred on Friday 21st July 2023, I had formed the view that [I] could no longer act as ICL in these proceedings.” The ICL confirmed that the Father sent a further email on this date advising that he intended to subpoena her to give evidence. Copies of the emails were annexed to her Affidavit. Simply as an observation: the emails attached to the ICL’s Affidavit make sobering and concerning reading not least because they contain a series of contentions by the Father relating to the ICL’s [alleged] conduct, which she properly and unsurprisingly refuted.
Also on 26th July 2023, the Mother filed an Application in a Proceeding, in effect, seeking that the children be returned to her primary care and that all time between the children and the Father be suspended. The Mother’s Affidavit in support of this Application detailed the recent background to it, which also included events that gave rise to her arrest at approximately 11.30pm and incarceration overnight in mid-2023. As recorded earlier, the charges against the Mother were ultimately dismissed in late 2023.[19] Among other things noted in the Mother’s Affidavit was that in the course of checking communication with the children using a messaging app, she found that the Father had sent over 300 messages to Y over the course of one month.
[19] Charge Sheets, AS Authority Statement of Facts, the Application for the AVO, together with other documentary material were provided in the ICL’s Tender Bundle, filed on 11th August 2023.
On 2nd August 2023, Ms E, the Child Protection case-worker for the children from CYPS, filed an Affidavit in support of the Mother’s 26th July Application. Conversely, she set out her reasons for not supporting the children spending time with the Father, saying (par.16) that she had concerns about the risk of emotional abuse of the children particularly in the Father’s care.
On 3rd August, the Father filed (a) a Response to the Mother’s 26th July Application seeking that it be dismissed, and that the children remain in his care, and (b) an Application in a Proceeding in which he sought, among other things, that (i) the scheduled further hearing on 16th August be vacated so that further evidence could be adduced regarding the safety and welfare of the children, (ii) a further report from Mr F be obtained, and (iii) the Legal Aid Office assist him in obtaining legal assistance under the s.102NA Order made by the Court. The Father also sought leave to issue a further subpoena to “B Organisation” to secure further material from the Mother’s psychologist. He also sought an Order for costs against the Mother because, he averred, it was the Mother’s Application of 26th July that led him to file the current Application for which (he said) she should be held financially responsible.
On 4th August, the Court delivered urgent, oral reasons (later published on 22nd August 2023) that referred to the CYPS Report, and made interim Orders, for the children to live with the Mother, that she have sole parental responsibility, and that the children spend no time with the Father. The CYPS Report was alarming, especially about the risk for the children in their ongoing engagements with the Father. Significant extracts from this Report were annexed to the judgment delivered on 4th August.
On 14th August, the Father filed an Application in a Proceeding (it was not sealed until 16th August). The 17 Orders sought were wide-ranging, including that I recuse myself from the proceeding. Order 2 was in curious terms, if not jurisprudentially inappropriate. The Father sought that an Order be made that the proceedings between the parties in 2019 be “closed” and “will remain closed” and that nothing from those proceedings can be used in the current litigation. Among many descriptions, perhaps “bizarre” is most apt in circumstances where it was the Father himself who commenced the current round of litigation precisely to amend the 2019 Orders. Proposed Orders 3-6 dealt with matters of property. The Father also sought various, multiple other Orders in relation to property at least one of which (Order 10) was inappropriate because it sought to exclude the “family home” from the property aspect of the proceedings. Exclusion of an asset from the property pool is usually, if not invariably, something that requires a determination by the Court. The Father contended that it should be excluded here because “this issue has previously been agreed to.”
The Orders sought included a number directed specifically at the Mother, including (Order 11) that she be “clinically evaluated” on the basis that she [allegedly] poses an “unacceptable risk” to the children, (Order 14) that she undertake anger management therapy, and (Order 15) inappropriately that the Mother be “identified as an unreliable witness and a vexatious litigant.” The complete raft of Orders sought was in the following terms:
1.That leave is provided to submit this application and supporting documentation.
2.That the proceedings between the parties of 2019 are closed and will remain closed. There is to be no reference to, or use of, information from those proceedings unless the proper, formal, process is adhered to.
3.That a Conciliation Conference is scheduled as soon as possible to alleviate that aspect of these proceedings if possible.
4.That until a Conciliation Conference is conducted and finalised, none of the requests of the mother for the conduct of a valuation et al of or at the father’s home, be allowed.
5.That the mother be required to provide those items needed by the father for the conduct of a ‘full and frank disclosure’.
6.That if the mother continues to refuse to provide the required financial disclosure, leave is granted (on such an occasion only) for the father to communicate to Chambers, briefly, what has not been provided so that further Order may issue as needed.
7.That an adjournment to facilitate the newly appointed ICL’s proper consideration of this matter.
8.That the newly appointed instruct a child informed consultant, with an understanding of developmental child psychology and/or neuroscience and trauma responses, who will produce a report assessing the validity of the children’s views, for weighted consideration.
9.That all maternal psychological notes and reports are provided to the ICL for consideration and to the court file noting that the father’s files are up-to-date.
10.That the family home is excluded from the property settlement as this issue has previously been agreed to.
11.That the mother is clinically evaluated, under an agreed set of Terms of Reference for unacceptable risk and parental capacity regarding the children by a clinical psychiatrist and that a report is to be provided and properly considered by the ICL prior to trial.
12.That an updated family report is conducted with the costs to be shared equally between the parents.
13.That an adjournment permits time to allow for the provision of the abovementioned family report.
14.That the mother participates in therapy for her anger management with a Service approved by the newly appointed ICL.
15.That the mother is identified as an unreliable witness and a vexatious litigant.
16.That the trial date of 16 August 2023 is vacated to permit a recusal hearing if needed.
17.That His Honour may recuse himself from my matter at any time he sees fit in accordance with law and ethics in lieu of reliance on 16 August 2023.
In my view, the Orders sought by the Father in this Application directed to the Mother was another instance of the Father using the litigation as a form of control, including having the Mother declared a “vexatious litigant.” There is some irony in seeking such an Order simply because, throughout 2023 and 2024, the most prominent person filing Applications was, and remains, the Father.
The Father’s supporting Affidavit for these expansive Orders sought was also sweeping. In my view, the Father’s Affidavit was a form of quasi-appeal. More than anything else, it typically contained a large volume of submissions. It was, intentionally or not, a wide-ranging, often flamboyant essay of complaints, mainly, but not only, directed to the former ICL. Many of the claims against the ICL, and against the Court, were extravagant indeed, and regularly improper. The 189 paragraphs (a number of which had a large number of sub-paragraphs) canvassed the following, including acknowledging (par.3) that no leave “was requested” presumably on the basis that the Affidavit was so long and did not comply with Court Rules or previous directions from the Court regarding length, and that Affidavits should not contain submissions:
(a)a so-called “relevant history and summary [of] outstanding matters”;
(b)the Father’s concern about recusal arising from (par.17 cf par.3) alleged “nonfeasance, apprehended and real bias, allowance of hearsay, grave omissions and inadequate inquiry.” The Father prayed in aid alleged “disregard of [unidentified] constitutional protections” and Article 18 of the ICCPR (International Covenant on Civil and Political Rights), which was used to allege further breaches of duty by the ICL (who, in any event, had been discharged by this stage). The ICCPR got a further airing in pars.35 – 41, albeit that it became something of an umbrella heading to criticise (i) Court staff, and (ii) what the Father described as the badgering and repeated intimidation by Counsel for the ICL and by Mr N on behalf of the Director-General during the hearing (the Court tried on multiple occasions to explain that there is a difference between hectoring a witness and simply “testing evidence”, which is all that ever happened here). The Father did not appreciate, in any relevant sense, any challenge to his evidence, which he took to be a personal attack upon him. He blamed the Court for allowing this testing of evidence to continue (in his words, described in par.39 as “pack bullying”);
(c)some sort of summary of what happened during the 2019 proceeding, which was resolved by consent, but which this Court, in the Father’s view, wrongly permitted the Mother to re-visit what he described as “closed Court proceedings in 2019.” Again, I must point out that it was the Father who resurrected and applied to re-visit the Orders from 2019 with his original Application. It is quite astonishing that the Father so regularly raised this as a contention when he was the moving party. Various other, generalised claims were made in relation to alleged perjury and misrepresentations that were, in his view, permitted by the Court (pars.42 – 56). All of this was in circumstances where, at the time of each of the alleged exhibitions of bias by the Court no formal findings of any sort had been made. Nor had the Father made any Application for my recusal. His delay in this regard being yet another reason why any recusal Application faced daunting obstacles to success.[20] But the Father pressed on, undaunted;
(d)the Father contended (pars.16 and 70; no evidence was supplied for these assertions) that the ICL wielded undue influence over CYPS and the preparation of its Report, such were her beguiling and almost omnipotent (or Machiavellian) ways;
(e)pars.57 – 82 canvassed a wide range of issues, from an alleged “continued narrative” that was adverse to the Father arising, somehow, from his PTSD diagnosis, and the Court’s continued “failure” to protect the Father from questions being asked of him about such things; he expressed concern about the Mother allegedly speaking to the Father’s estranged sister concerning the Father’s “private medical information.” I pause here: the curiosity and inconsistency of the Father’s positions is stark because (i) he sought regularly to use information from the Mother’s older, estranged daughter, but was upset by the Mother speaking with his estranged sister; (ii) the Father resisted information sought by the Mother via subpoena from the Z Authority and W Authority, yet he sought regularly to obtain information from B Organisation regarding the Mother’s psychological and emotional well-being; and (iii) the Father denied (par.74) that he acted (or acts) in a coercively controlling manner towards the Mother, but levels the same accusation at her in relation to the children (par.80);
(f)in contending that the Court did not properly assess the views of the children, it also, the Father says, did not adhere to “parliamentary intent and community expectations.” He relied upon the Report of the Royal Commission into Sexual Abuse, the Australian Law Reform Commission’s inquiry into “family law reviews” (par.91), and comments and submissions by the organisation “CC Organisation” (pars.94-103) in support of his contentions. For better or for worse, all such matters are not relevant considerations I am required to take into account in Part VII of the Act, either in its old or new guise. Nor were any of these Reports or materials formally in evidence before the Court;
(g)the Father stated (pars.112 & 113) that he “took umbrage” at my comments that while the Father was not a lawyer, he was an experienced litigator”, and went on to confirm that he was a self-represented litigant (which the Court duly recognised) and sought that he be granted “appropriate leniency.” What this “leniency” looked like was not explained. In these matters and in almost all else raised by the Father, his fundamental problem was that no findings had been made by the Court and that only interim Orders had been made. Further, to state the obvious: the fact that the Father is not a lawyer is a statement of fact, as is the reality that he has been embroiled in litigation for a significant period of time, and for large parts of it as a self-represented litigant;
(h)further complaints about the [former] ICL were laid out in detail at pars.117 – 147, with 30 separate complaints set out in par.117 alone. I will not detail them save to record that the Father claimed that the ICL (i) lied to Chambers, (ii) deliberately misled the Court, (iii) conspired with the Mother to break Orders of the Court, and (iv) altered evidence. Each and all of these were charges of the gravest impropriety. The Father never took action to prosecute them. They should never have been made. They exhibit an alarming lack of insight about proper process, including the importance of evidence to support any claims, especially those that were so professionally and personally grave. Absent proper evidence to support them, such claims could reasonably be taken as a form of attempted intimidation. One might also reasonably expect that most people (including experienced self-represented litigants) would understand that the graver the claim, the greater the need for evidence to support it. Regrettably, not so here. As already noted, the Father is an experienced litigator; he is a retired employee from the defence forces; he is an intelligent and articulate person. He has plainly studied all documents filed by all parties (including the two ICLs and the Director-General), yet he persists in, for example, filing voluminous Affidavits that are replete with submissions and making multiple claims, many of them outrageous, with little or no evidence, and contrary to the advice/direction of the Court not to include submissions in Affidavits. He sought to be scrupulous to the “nth degree”, mainly by reference to his own prior labour in the defence forces, in requiring strict adherence to proper process and all else. Unfortunately, his reference points were regularly, seriously awry that did more to hinder than to illuminate matters that were before the Court. Very regularly, such as the frequent references to the ICCPR, parliamentary reports, and submissions from certain activist groups, only served needlessly to occupy time to read them, as well as being unnecessary distractions from the considerations set out in Part VII of the Act which the Court and everyone else is required to address, and to consider the actual evidence before the Court in relation to them.
[20] See, among other authorities regarding the import of relevant delay regarding recusal Applications: Vakauta v Kelly (1989) 167 CLR 568 and a range of other matters canvassed in the “recusal judgment”, noted below.
In my view, as already indicated, the Father lacked significant insight into the consequences of his own actions on multiple fronts. These are outlined and examined in more detail later in these reasons. His Affidavit summarised here was a remarkable piece of work that sought to bring into account so many issues and disparate but largely useless materials that no one else would have attempted, including the myriad of self-represented litigants who come before the Court regularly. And for all of the complaints made against the former ICL, the Father did not seek any redress or relief against her. Put another way: why make complaints, especially such a wide range, and of such serious if not scandalous potential import, if no relief from the Court was sought in relation to them? It was, at least, a wasteful, litigious non-sequitur. It is time to return to the Father’s long and meandering Affidavit affirmed on 14th August 2023.
(i)pars.123 – 144 provided the Father’s further and ongoing submissions about the Court’s “over-arching purpose”, again in the context of the ICL’s alleged failures. The alleged failures then turned quickly, again, to the Court’s failure to give proper weight to the Father’s evidence and having given, in his view, improper weight to the ICL’s “opinion” and the Mother’s allegations. At pars.145 – 147, the Father gave a short disquisition on the tort of “non-feasance” and how it applied to the ICL’s conduct (the more usual jurisprudential distinction between “non-feasance” and “malfeasance” was not apparent or obviously appreciated). Pars.148 – 161 related to property matters, including the Court’s apparent, or alleged, overly relaxed approach to the Mother’s evidence and claims regarding same;
(j)pars.162 – 188 related more directly to his submissions regarding recusal, which was on grounds of various kinds of bias as well as “judicial bullying.” The Father also contended that in making the interim Orders there was no “reasonably supported evidence”. Plainly, he did not, and does not, regard the CYPS Appraisal Report of 211 pages as sufficient evidence upon which the Court could rely. A number of other inaccurate propositions were put, such as my alleged refusal to allow the Father to cross examine all witnesses, not just the Mother, albeit that the August decision complained of (but not appealed) was an interim decision following an interim hearing at which cross examination does not usually or typically occur and did not occur on this occasion either. Apparently too, according to the Father (par.177) somehow, I am responsible for the Father’s difficulties in obtaining legal representation. My “character” was also called into question, as well as not properly (or at all) applying “traditional equitable doctrines” (relying upon the High Court decision in Muschinski v Dodds, a decision that dealt with resulting and constructive trusts, without explaining how that judgment applied here in relation to interim parenting matters)[21];
(k)par.189(a) – (q) set out the Father’s proposed Orders sought to “vary” the interim Orders made on 4th August 2023.
[21] Muschinski v Dodds (1985) 160 CLR 583.
If more be needed, the Father’s expansive and voluminous material filed with the Application in a Proceeding in mid-August 2023, again belied the Father’s occasional, yet disparate, claims that the matter could and likely would resolve readily if only, for example, the Mother disclosed the name of her most recent psychologist! The inconsistency and incongruity between the Father’s contentions and the extreme nature of so many of his claims, plus the volume of such wide-ranging but often inapposite material, was an ongoing and troubling issue for the Court, and presumably for all others involved in the litigation.
On 15th August, the Mother’s Counsel filed an Aide-Memoir of submissions regarding the Father’s recusal Application. Those submissions provided a critique of the Father’s many contentions and challenged them in the light of the authorities cited. On the morning of the recusal hearing on 16th August 2023, the Father provided a “Rejoinder” to the Mother’s submissions to all parties (and the Court). This document was later emailed to Chambers on 17th August 2023. The Father’s recusal Application was ultimately dismissed pursuant to reasons published, and Orders made, on 19th October 2023. Things sort of “settled down” somewhat in terms of the filing of material – until the end of September.
On 29th September 2023, the Father filed an urgent Application in a Proceeding, supported by an Affidavit that included a significant amount of material which had been filed earlier in the proceeding, such as the material from the DPP regarding the Mother’s charges (which were in the ICL’s Tender Bundle filed on 11th August 2023), a “Without Prejudice” letter from the Father’s previous lawyers dated 28th April 2022, and some curiously worded (in the form of some “deed” “Let it be known …”) and ill-described material by the Father addressed to the Mother relating to earlier parenting proceedings, simply dated “mid-2019”. Such dated material assisted the Court not a jot. A graphic photo of X with a sort of injury was also included even though the “injury” was addressed in other material in some detail including the Mother confirming that X frequently had injuries and had seen a doctor about them.
In his September 2023 Application, the Father sought to re-visit the interim parenting Orders made on 4th August on the basis of various “risks” identified in relation to the children. He also noted that even though there was a recusal Application before the Court, he considered it appropriate for me to deal with his current Application, saying that “current [unidentified] case‑law certainly allow for it.” Indirectly, the Father was challenging the Mother’s enrolment of the children in a different school and the potential ill-effects on their mental health flowing from it. As has been the case throughout the litigation, whether the children are with him or not, he advises (and professes to know) what is going on with the children in the most minute detail, which is rather worrying given that by this time, pursuant to Orders made in early August 2023, he was spending no time with the children. Clearly, social media, and the constant “feed” of information from M (which seems to include a wide array of “posts” from TikTok, including multiple items “re-posted”, which suggests that such items were initially posted by others) provided (and apparently still provides) a ready source of information.
Leaving to one side that the provenance (and origins) of such material is completely unknown, the regular discussion of matters relating to the children who are involved in the proceeding, and with such discussion obviously involving the Father and M, could lead to charges being brought against the Father for breach of s.121 of the Act. All involved in such discussion would do well to desist in such discussions because they risk putting themselves in potential jeopardy as a result of the posts, and all involved in them being referred to the Marshal of the Court for potential prosecution for breach of s.121, which prohibits discussion of anything, such as the current parenting matter, that is before the Court. Everyone should beware and take heed. Respectfully, this includes, but is not limited to, M. She can support her half-siblings. But the litigation and all of its machinations are not to be discussed – by or with anyone.
Regarding his 29th September 2023 Application, on 12th October, Chambers responded to an inquiry by the Father regarding the listing and hearing of his interim Application, pointing out to him that (a) it could not be dealt with until after the Court’s delivery of reasons and the making of Orders regarding his recusal Application, and (b) the Mother had sole parental responsibility pursuant to the Orders made on 4th August (which were not appealed). It was later advised that his Application would be listed for hearing at the resumed Final Hearing date on 14th November, while also recalling that that hearing would be considering, on a final basis, issues such as parental responsibility and matters relating to “spending time” with the children. For reasons set out below, the November Final Hearing date did not proceed because it was overtaken by other events.
The procedural and other misunderstandings of the Father continued. For example, having delivered reasons and making Orders on 19th October 2023 dismissing the Father’s recusal Application, on 3rd November 2023 the Father filed a further Application, this time seeking that the then currently listed final hearing date of 14th November be vacated and instead, his Application be heard seeking a “stay of the proceedings” while he filed an appeal against the recusal Orders.[22] In his covering letter, he contended, in part impliedly, in part explicitly, that (a) the Court had been dilatory in taking two months for the delivery of reasons regarding his recusal Application, and (b) as a self-represented litigant, he had suffered the misfortune of having “little time” to allow him to appeal the decision. The Court pointed out to him that, whenever the judgment was delivered, the appeal period within which an appeal could be lodged remained the same – thus his contention of being hard-done by because of some imaginary, shorter appeal period, was erroneous. A quick check of the Rules, or inquiry of the Appeals Registry, would have solved this argument and needless contention. Moreover, the judgment was delivered two months after it was heard, which was well within the period set out in the Court protocol of judgments being delivered within three months.
[22] The “recusal judgment”, dismissing the Father’s recusal Application was Farrington & Belkis (Recusal Application) (No 2) [2023] FedCFamC2F 1343.
One immediate and obvious consequence of lodging the “recusal appeal” was that the final hearing date for the trial was again delayed. Optimistically, the Father suggested that if his Application could be dealt with expeditiously, the matter could be finalised “before Christmas.” There were 9 grounds of appeal, and 22 different “arguments” proposed by him. Although the Appeal was specifically in relation to the Court’s recusal judgment, many of the Father’s general complaints related to the 4th August Orders concerning the children living with the Mother and spending no time with the Father, thereby turning it into a quasi or de-facto appeal regarding the Orders of 4th August.
On 8th November 2023, the Father filed an Amended Application regarding the appeal. The Father’s Affidavit in the Appeal (filed 3rd November), among other things, raised matters relating to the conduct of the trial in March 2023. The Father’s ongoing capacity – in every respect – to “stretch” if not to over-reach, was a constant. Time-limits seemed more of a suggestion than a prescribed period.
Although noted multiple times, the Father’s email of early 2023 is chilling. Mr F described as “very concerning.”[271] As an aside, it also makes a mockery of the Father’s written submission regarding costs arising from his Contempt Application (viz par.8) in relation to the Mother’s alleged failure to disclose her latest psychologist being the sole reason for the ongoing litigation. The whole of that email will be annexed to these reasons.[272] Here, however repetitious, I need only note two paragraphs from it (emphasis added):[273]
Why am I telling you this now? I gave you the details the other day about the emails actually but you seemed to have not listened. As for the drinking well, that was a no brainer too. Who do you think has been moving your yellow bin [in the] mornings before the recycling truck arrives and while the bin is sitting on council property and is not part of your home address? Do you have a single clue how long I’ve been doing that for???
Even less of a no brainer was the number blocking and iMessage. That would have taken less than a moment’s investigation before actually writing it down and sending but that ship has sailed now. The final bit you will find out about soon enough.
[271] TB 7 & 8
[272] Annexure B
[273] Mother’s Affidavit, 19th February 2023 p.192.
The admissions, the threats (actual and implied), and the coercive control, are plainly evident in this correspondence. The Father’s conduct is a form of “stalking”; it is unacceptable in every respect. His promise or threat of future adverse conduct towards the Mother, as already stated, is chilling. Against the background of such correspondence (which also vilifies the paternal Grandfather), the Father’s ongoing, relentless correspondence and Applications throughout 2023, assumes both greater significance and more troubling provenance. In turn, it virtually promised if not formally threatened the Mother on multiple levels, which in turn must be taken by the Court as highly likely to impact the children adversely and significantly, again as recorded by Mr F in his oral evidence. That being so, and having regard to s.60CC(2A), which enjoins the Court to give priority to its protective responsibilities towards the children, ensuring that they are protected from “physical or psychological harm”, the conclusion here is driven by the evidence that protects the Mother and the children to the utmost. Such a finding is consistent with the comments and assessment in the very detailed CYPS Appraisal in mid‑2023.
The Mother’s arrest late at night and incarceration overnight must have been harrowing. She intimated as much in her later oral evidence in December 2023, including that she considered it to have been orchestrated. The involvement of the children in this, notably X (with details set out exhaustively in the CYPS mid-2023 Appraisal), was appalling. As a result of the allegations against the Mother that she had assaulted X, there was quite some prospect that the child would have been required for cross examination. Only when this reality was put to the Father did he seek, quite rapidly, that the matter be resolved without involving the children further. To say that this incident cast further and deep doubt in the Mother’s mind about the reality and capacity to co-parent with the Father would be a significant understatement. From the Court’s perspective, it was a lamentable and astonishing incident, which was also of a piece – unfortunately – with other terrible conduct across the board.
Among the “Recent history of the litigation” section of these reasons (beginning at [35]) there is an outline of the CYPS Report from mid-2023. There is also reference to the Judgment of this Court on 4th August 2023, which canvasses in detail the most crucial comments and assessments by CYPS, notably of the Father. It was that Appraisal and that judgment that led to the children spending no time with the Father, them living with the Mother, and that she have sole parental responsibility. The August 2023 judgment was not appealed by the Father, as recorded by the Appeals Registrar in his judgment of 13th November 2023 at [31], [87] and [109]. In the same judgment, at [35], the Appeals Registrar noted that the Father’s Application filed on 29th September 2023 was a “de facto appeal” in relation to the August 2023 judgment. In November, the Father’s appeal was principally in relation to the October judgment of the Court refusing the Father’s Application that I recuse myself. Ultimately, however, the Father withdrew his appeal in relation to the recusal judgment. In the course of his reasons, the Appeals Registrar said, at [95]:[274]
… The Father should not be permitted to utilise his appeal against the primary orders [regarding recusal] for the ulterior purpose of attacking the current interim parenting orders.
[274] For a helpful overview of multiple matters, including the Father’s Application to expedite the Appeal, see the judgment of the Appeal Judicial Registrar of 13th November 2023 (Appeal Number NAA 301 of 2023).
I need not be even more repetitious than usual and comment again on the Father’s constant inveigling of M, and her jaundiced “information” about the children and herself, into the litigation.
The matters canvassed throughout these reasons and summarised here regarding the Father’s coercive actions towards the Mother, as well as the Final Family Violence Order issued by City V Court, is sufficient consideration of the matters set out in sub-paragraphs (j) and (k) of s.60CC(3).
In addition to these reasons, I accept and adopt the submissions of the Mother and the ICL. I also accept the submissions on behalf of the Director-General but not the submission regarding, in time, supervised time between the Father and the children.
There is no question that it is a very serious, if not grave, step to prevent children from spending time with one of their parents. I simply recall the earlier references in these reasons to the Full Court’s decisions in Bielen & Kozma and Kovac & Kovac. However, on the evidence outlined and considered here in significant depth, the Court’s protective function under s.660CC(2)(b) and (2A) of the Act must take precedence over all else. The Father’s consistent, persistent, and completely unrelenting conduct towards the Mother, which includes the equally unremitting use of the litigation processes in this Court, together with his belligerent, belittling, sarcastic and invariably accusatory (and regularly condescending) communication towards her, makes any co-parenting between the parents completely problematic as well as dangerous. So much was acknowledged by Mr F. The acknowledged stalking of the Mother, with the threat of more “covert action” in the future, as set out in the Father’s early 2023 email, his conduct with relentless Applications, and equally relentless correspondence throughout 2023 and into 2024, confirms that, in my view, it is simply unsafe for any “time-with” arrangements, even supervised, between the Father and the children to occur. Such would necessarily involve communication and some form of engagement with the Mother. The history of the matter confirms that with or without Court or other sanction, the Father will take any and every opportunity to advance his jaundiced view of the Mother, which, in turn, must impact upon the children, as it has done according to the evidence from CYPS and the Mother, and as opined by Mr F. The Mother (and in turn her parents and the children) lives her life effectively under a form of siege, including psychological siege from the Father. The psychological and other coercive control of the Mother’s life by the Father must end.
Further, the children need, at last, to be quarantined and completely protected from the relentless conflict between their parents which they have endured now for so long. They have had a safe haven only since August 2023. It needs to continue, for their sakes and that of the Mother.
As noted multiple times, the Father lacks insight to a very significant degree. He lacks empathy likewise. He is incapable of taking responsibility for his own actions and consistently blames everyone else – the Mother (the maternal Grandfather), his lawyers at the time, the first ICL, CYPS, and the Court. Such a pattern was noted by CYPS in its mid-2023 Appraisal.[275] His conduct is plainly coercive and controlling of the Mother. The Father acknowledged in his evidence, more than once, but obviously without necessarily appreciating the gravamen and provenance of his comments, that the litigation was brought to help the Mother to properly parent the children. He also acknowledged, but again likely without appreciating the gravamen and provenance of it that he had engaged in coercive and controlling conduct throughout his life, and likely had done so in relation to the Mother. Such admissions are also relevant to the Court’s finding regarding the Father’s consistent lack of insight as a parent and in relation to co-parenting with the Mother. For the Mother’s sake and that of the children, the Father’s deliberate, but often (albeit regular) unrecognised, coercive and controlling actions cannot be allowed to continue. Further, the oral evidence of Mr F regarding the Father’s conduct, and possible issues concerning the mental health of the Father, the Mother, and the children, give the Court further if not grave pause. I also recall Mr F’s comments (summarised above) that this is one of the most acrimonious matters in which he has been involved, and that the consequent risks to the children are significant. In my view, the Father needs professional assistance, especially to deal with his obsessive if not compulsive pursuit of the Mother. In the light of these extensive reasons, I earnestly hope that he obtains it.
[275] See p.196 of the Appraisal.
The litigation should have finished in April 2023. The Father’s conduct ensured that it continued throughout the rest of the year and well beyond. The disruptive, unrelenting, accusatory correspondence (to the Mother and to the Court), together with the multiple Applications, which concluded with the baseless Contempt Application against the Mother, continued the form of litigious harassment into the early months of 2024.
While one can never safely predict the future, and certainly not in a matter such as this, one could not be completely sanguine that the Orders to be made here are least likely to lead to less, rather than more, litigation. While there is the “property” litigation ahead, most importantly, the Orders here are, in my view (a) in the children’s best interests, and (b) as far as judicially possible, properly protective of the children and of their primary carer, the Mother.
In addition to these reasons, I accept the submissions of the ICL and the Mother.
As noted multiple times in these reasons, I have made findings that include the following:
(a)The Father has engaged in coercive and controlling conduct in relation to the Mother;
(b)The Father acknowledged that he has regularly engaged in coercive and controlling conduct throughout his life and had likely done so with respect to the Mother;
(c)The Father had made a complaint to the Mother’s workplace which resulted in her being investigated – a specific and highly embarrassing form of coercion;
(d)A particularly insidious example of coercive conduct, described by Mr F as a form of stalking and intimidation, was the Father rummaging in the Mother’s re-cycle bins, together with the written promise and threat of “more to come”;
(e)The Father has weaponised the litigation, which is recounted at length in these reasons;
(f)The Father is always calculating and strategic. The Father proposed to the Mother’s former Husband that they form a united front against the Mother. Mr F said that there was a power imbalance between the parties;
(g)As well as regularly showing lack of insight, the Father has regularly displayed poor and inappropriate judgment. Often, the lack of insight and poor judgment went hand in hand if not being two sides of the same coin. Examples of the former are his lengthy letter of complaint in January this year (under the pen of his Counsel) regarding multiple matters including the evidence given by the Case Worker at the resumed hearing in December 2023; his contempt Application against the Mother on the sole grounds of a change in her evidence; these matters took place only one month or thereabouts after the Father gave evidence in December 2023 that he trusted the Mother and now supported her. As for his inappropriate judgment, there was (a) the bizarre claim in one of his Affidavits that the former ICL had some form of privileged access to my Chambers, based, he said, on information given to him by some un-named police officer; and (b) my so-called standing in some inaccurately named diocese. How these matters, even if remotely true, which they are not, was relevant to the Court’s determination of parenting matters was not clear at all. They reflected more on the Father than on anyone else;
(h)Regrettably, the Father rarely if ever took responsibility for his actions. Problems and difficulties were always someone else’s fault – his former lawyers (on different occasions involving different lawyers), the former ICL, the Mother, the maternal Grandfather, the CYPS Case Worker, the Court;
(i)Mr F noted that it was highly difficult for a victim of coercive and controlling conduct to co-parent with that person’s abuser. He also commented that there were significant mental health, and other health risks, for victims of coercive and controlling conduct;
(j)Mr F said that this was one of the highest conflict co-parenting cases he had ever experienced. He commented further that these children have been impacted probably the most I have seen by the emotional consequences of the conflict between the parents;
(k)There are risks even if supervised time was to be undertaken, according to the evidence of the Mother and of the CYPS Case Worker, Ms E;
(l)In my view, for the reasons given, complete respite is the only remedy available to the Court to ensure that the coercion and control exerted relentlessly by the Father over the Mother ceases. The Mother and her parents, and in turn the children, have lived their lives under a form of siege. Their only protection now is, literally and metaphorically, for the drawbridge to be pulled up and she and the children (and her parents) be quarantined from the onslaught from the Father, most particularly the relentless psychological pressure, day after day, Application after Application, email after email, and all else that is documented in these reasons.
For the reasons given, in my view, the Orders sought by the Mother and the ICL are in the best interests of the children. It is a tragic but necessary outcome to protect them in the light of the Father’s ongoing, unrestrained and unrelenting conduct. Summarily, the Orders now to be made in the best interests of the children provide that:
(a)Excepting any Application/Response regarding property matters, all outstanding Applications in relation to parenting be dismissed, and all previous parenting Orders be discharged;
(b)The children, X (born in 2011) and Y (born in 2012), shall live with the Mother;
(c)The Mother shall have sole parental responsibility for the children;
(d)The children shall spend no time with the Father;
(e)The Father be restrained by injunction to ensure that he does not approach the children, directly or indirectly, including at their schools, and that he not contact the children, directly or indirectly, including through their older sister, M, or by electronic or social media; and
(f)As a further protective measure for the Mother and the children, noted in the ICL’s Case Outline in March 2023 which sought, effectively, a restraint on the Father being permitted to file any further Applications, in my view a more modified and conditional form of restraint is necessary as part of the protective Orders of the Court. In the light of the volume and frequency of the Applications filed by the Father in 2023 and 2024, in the event that the Father files any further Application in this Court within the next 12 months that replicates any Application made in the last 18 months, the Father be further restrained from filing any further Applications in this Court without the prior leave of the Court.
Very early in the relationship with the Mother, as recorded by Mr F, the Father’s evidence was that he was obliged to save the Mother. That protective task now falls to the Court – to protect the Mother and the children. For the reasons I now publish, the Orders sought by the Mother, supported by the ICL, should be made, whereby she will have, on a final basis, sole parental responsibility, the children will live with her, and they will spend no time with the Father.
I certify that the preceding four hundred and seventy-nine (479) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 14 June 2024
ANNEXURE A
Summarised Chronology of Events Since March 2023
Dates
Event
16 -17 March 2023 Final Hearing
Matter went part-heard.22 March 2023 ICL issued further subpoenas to W Authority and Z Authority. 29 March 2023 Father filed Notices of Objection on 29th March 2023. 18 April 2023 Subpoena Hearing re: Father’s Objections – Judgment reserved 21 April 2023 3rd day of Final Hearing 28 April 2023 4th day of Final Hearing
Orders for filing of closing submissions1 May 2023 Judgment Delivery – subpoena objections
Subpoena objections dismissed.
Father to pay ICL’s and Respondent Mother’s costs for Counsel and solicitors fees.4 May 2023 Orders made in Chambers for procedural course with respect to property then to be allocated Conciliation Conference after provision of full and frank disclosure. 8 May 2023 No further material produced by W Authority.
Leave issued for material produced by Z Authority to be inspected.22 May 2023 Gilbert & Partners withdrew as Father’s legal representative. 24 May 2023 Father filed closing written submissions on own behalf. 25 May 2023 Mother filed Amended Response to Initiating Application – only amended by adding orders sought with respect to property. 9 June 2023 Mother filed closing written submissions. Mid-2023 Mother served with AVO with children listed as the protected persons Mid-2023 Mother went before Court and was bailed to reappear in mid-2023, with part of her bail undertakings not to have any contact with the children. 16 June 2023 Mother filed Application in a Proceeding and supporting Affidavits from herself and her Father – arose following incident where Father collected the children from school on Mother’s day following allegations of abuse by the children in mid-2023.
Mother seeking immediate return of children to her care, and in the event Father did not return the children, recovery order to issue.
Mother seeking Father’s time with children be suspended. No contact w/ Father; no time w/ Father.
Live solely w/ Mother.
Mother seeking restraint on Father approaching Mother or children, attending school, etc.
Mother sought leave to rely on material produced in this matter in FVO proceedings in NSW Local Court.16 June 2023 Father also filed Application in a Proceeding and supporting Affidavit.
Father sought leave to file Application and Affidavit of up to 15 pgs.
Father sought Mother be held in contempt; sought clinical notes from Mother’s treating psychologist be subpoenaed by ICL; CYPS provides report on children’s wishes; and all documents incl. those from NSW and City V Police provided to Mr F to conduct updated Family Report.
Father sought sole care of children and Mother to have supervised visitation, restraining Order against Mother, and Mother to attend FVO intervention program for alcohol and anger management.
In Father’s Affidavit he also seeks leave to adduce new evidence incl. Mother’s psychologist notes; evidence of Mother’s abuse of children, and evidence ICL misled the Court.
Father details Mother’s arrest re: abuse allegations, etc.19 June 2023 Orders in Chambers
Mother to file additional Affidavit from Grandfather responding to Father’s Affidavit in relation to AIP.
Parties and ICL to file 1 page of written submissions in relation to procedural course incl. re-opening of evidence.
ICL requested to meet with children ASAP.
NSW DCJ – s 69ZW Order.20 June 2023 Orders in Chambers
Request for City V CYPS to intervene in proceedings.
Various notations about current state of proceedings.21 June 2023 Maternal grandfather files Affidavit outlining the events which occurred in mid-2023 22 June 2023 Father files three separate Affidavits in response to Mother’s Affidavit and Maternal Grandfather’s Affidavits.
Parties all filed written submissions re: re-opening.23 June 2023 Mention re: re-opening
CYPS attended – not yet party to proceedings, but advised of intention to intervene. Advised further appraisal would be completed in 3 weeks and provided under previous s 69ZW Order.
Judgment reserved.28 June 2023 Judgment Delivery – re-opening Final Hearing
DG Joined as party to proceedings.
Final Hearing be re-opened on 16 August 2023 only in relation to issues post-dating 28 April 2023.
Leave granted for recording by X to be relied upon.
Parenting arrangements – children to spend time with Mother each weekend for 4 weekends and then back into week-about arrangement.
Maternal Grandfather to provide undertaking to monitor Mother’s time with children.
Parties relieved of implied Harman undertaking re: use of family law docs in City V Court and Local Cout.
102NA Order made in the Father’s favour.
Dismissed the AIP’s filed by both Mother and Father on 16th June 2023.
Notations –
Father confirmed he did not seek to make Application for disqualification of ICL
DG advised appraisal underway and expected to be completed within 3 weeks.
These Orders to take precedence over any others in City V Court or Local Court.29 June 2023 Maternal grandfather files undertaking 10 July 2023 Orders in Chambers
Each party to file and serve one consolidated affidavit and one affidavit per lay witness sought to be relied upon at re-opening of Final Hearing.
No more than 10 pages in length.
ICL to provide tender bundle.13 July 2023 Father files Amended Initiating Application re: property orders sought only. 18 July 2023 SCB Legal files Notice of Address for Service for Father 26 July 2023 Orders in chambers
Release of City V CYPS appraisal report
Restraint on disclosure of contents to children or any other person26 July 2023 ICL (Ms Cruise) filed Application in a Proceeding seeking Orders she be discharged.
Filed supporting Affidavit setting out incident w call with Y; various emails from Mr Farrington – Father advised Y was admitted to hospital to deal with suicidal ideation and self-harm; blames ICL.26 July 2023 Mother also filed Application in a Proceeding and support Affidavit setting out events surrounding criminal allegations of abuse and her arrest.
Mother advises she took Y to GP in mid-2023 and GP suggested Y be admitted to Hospital.
Mother sought Orders for sole PR; children live solely with Mother; no contact w Father.26 July 2023 Orders in Chambers; release of CYPS Appraisal Report 31 July 2023 ICL discharged. Further ICL sought from Legal Aid. 31 July 2023 Maternal Grandfather filed detailed Affidavit re: X’s allegations of physical abuse. 1 August 2023 SCB officially withdrew from record. 2 August 2023 Affidavit filed by Ms E of CYPS re: concerns about Father; in support of Mother’s application for sole PR and sole live with orders.
Raises concerns about Father’s discussions with children and involvement of children in Court proceedings.3 August 2023 Father files Application in a Proceeding seeking the re-opening Final Hearing on 16 August 2023 be adjourned; seeking sole live with orders, but spend time w Mother in accordance with wishes; new ICL to meet with children; update of CYPS Appraisal to consider material from AU Centre; engage Dr F for updated Family Report; any document related to B Organisation be set aside; Mother’s AIP be dismissed.
Father filed supporting Affidavit raising concerns subpoena material from Mother’s psychologist at B Organisation is incomplete.3 August 2023 Father files Response to Mother’s AIP seeking it be dismissed. 3 August 2023 Interim Hearing
ICL discharged subject to appointment of new ICL.
Leave granted to legal representatives only to inspect and photocopy material produced by B Organisation.
Father’s Application to vacate part-hearing Final Hearing on 16th August 2023 is refused.
Judgment in relation to AIP of Mother and AIP of Father reserved.
Notations –
No party seeks to cross-examine ICL at Part-Heard Final Hearing.
Notwithstanding adverse comments in CYPS Appraisal Report (Exhibit CYPS2), the Father does not make Application for recusal of presiding Judge.
CYPS Appraisal formerly tendered.4 August 2023 Judgment Delivery – interim change of residence
Father’s Application for leave to issue further subpoena to B Organisation is refused and AIP dismissed.
Mother to hold sole PR; shall live w/ Mother. Time w/ Father suspended immediately.
Recovery order to lay in Registry pending compliance, or in event children not in sole care of Mother.
Both parents restrained from communicating – only through Legal representatives, ICL and City V CYPS.
Restraint on discussing proceedings with children.14 August 2023 Father filed Application in a Proceeding seeking recusal of HH.
Seeking proceedings between parties from 2019 remain closed. No use of info from those proceedings.
Adjournment to facilitate ICL’s proper consideration of matter.
ICL to instruct child informed consultant to produce report assessing validity of children’s views.
Sought production of Mother’s psychologist notes to ICL.
Mother to be clinically evaluated under agreed Terms of Reference for unacceptable risk and parental capacity.
Updated Family Report.
Mother to participate in therapy for anger management.
Mother to be identified as unreliable witness and vexatious litigant.15 August 2023 Father’s Affidavit filed in support of Application in a Proceeding. 22 August 2023 Written reasons prepared and provided to parties re: Interim Change of Residence Judgment 29 September 2023 F files urgent Application in a Proceeding
Seeking interim orders of 4 August 2023 allow return to […] weekday contact for children and Father
Children be unenrolled from AV School
Children be re enrolled in LL School
ICL organise an urgent update report from Mr F
Mother re enrol children in J Program29 September 2023 Father files accompanying Affidavit for the above AIP 19 October 2023 Judgment delivery on recusal application (dismissed)
Costs reserved
Set down for Final Hearing on 14 November 2023 at 10am3 November 2023 Father files Application in a Proceeding seeking stay of Orders on recusal Application
Stay of final hearing dates
Seeking that urgent AIP (29 September) be heard on 14 November3 November 2023 Father files an Appeal of recusal Orders of 19th October 2023, and that Orders of 4th August 2023 be set aside and parenting Orders of September 2019 be reinstated
Accompanying Affidavit and Application in an Appeal for urgency8 November 2023 Father files an Amended Application for Appeal 13 November 2023 Appeals Registrar refuses Application for expedition of Appeal 14 November 2023 Mention
Father to notify Chambers within 7 days of whether he seeks to continue with the Appeal and stay Application
Parties to work out trial plan and timetable
Notations that parties cannot file any further Affidavits to rely upon at the Final Hearing without leave (with M to rely on her Affidavit of 26th June 2023 and F to rely on his Affidavit of 3rd August 2023)
Notation that the final day of the Final Hearing must be confined to matters post-28th April 2023, as matters prior to that date have been canvassed in Court16 November 2023 Father files a Notice of Discontinuance of his Appeal and Stay Application 27 November 2023 Mother files Affidavit of maternal Grandfather outlining the wellbeing of the children in Mother’s care 28 November 2023 Father files Application in a Proceeding seeking leave to file an updated Affidavit
Seeks independent review of CYPS report
Seeks permission for Father to view, copy and uplift access to current Registry Files assigned to the matter
Seeks permission to have access to audio file of 4 August 2023 oral reasons
Seeks that case manager attend final day of hearing for cross-examination
Files Affidavit in support of AIP (which was later removed from the Court portal)5 December 2023 Mention
Ms AR appears on behalf of the Father under s.102NA
Discussion of the list of procedural issues outlined via email by the ICL, including (a) dealing with Chambers and photocopy access to subpoena material; (b) Father’s AIP dated 29 September 2023; (c) Father’s AIP dated 28 November 2023; (d) Affidavit of Father dated 28 November 2023; (e) Affidavit of maternal Grandfather of 27 November 2023; (f) witnesses required for the final hearing; (g) provision of the transcript for Mr F and Mr F’s unavailability; (h) other issues including criminal charges
Orders that Father notify Chambers whether 29 September 2023 is to be dismissed
Confirmation of ruling that no leave granted for Ms HH to be cross-examined at final hearing
ICL to provide joint trial plan, timetable and joint tender bundle
Matter listed for part heard Final Hearing on 15th December 20237 December 2023 Ms AR indicates to the Court that she has withdrawn from the matter, Father self-represented again
Father advises via email that he will directly brief Mr Shaw of Counsel for the final hearing7 December 2023 Father files Amended Affidavit affirmed 28 September 2023, Amended AIP of 28 September 2023 with amended Orders sought 8 December 2023 Father files Amended Affidavit affirmed 29 September 2023 15 December 2023 Final day of Final Hearing
Filing timetable for written submissions19 January 2024 Counsel for Father provides letter to Court seeking that the evidence be reopened and that the AIP filed 29th September 2023 be heard 23 January 2024 ICL, Mother and DG sends to Chambers submissions on the 4 issues raised by Father in his letter of 19 January 2024 29 January 2024 Email from Chambers to parties outlining that only appropriate course is to proceed with the filing of submissions for substantive proceedings as outlined in Orders of 15 December 2024 30 January 2024 Father files written submissions (substantive proceedings) 12 February 2024 Mother files written submissions (substantive proceedings) 23 February 2024 Contempt Application filed by Father with Affidavit 24 February 2024 Contempt Application withdrawn by the Father 27 February 2024 ICL filed written submissions (substantive proceedings) 28 February 2024 DG files written submissions (substantive proceedings) 5 March 2024 Father files written submissions in reply (substantive proceedings) 7 March 2024 Mother emails written submissions to Chambers on the issue of costs with respect to the Father’s Contempt Application 15 March 2024 Father and ICL file written submissions on the issue of costs with respect to the Father’s Contempt Application 22 March 2024 Father files a Notice of Child Abuse, Family Violence or Risk
ANNEXURE B
Email from the Applicant Father to the Respondent Mother dated early 2023
[Ms Belkis],
You not only received my iMessage, you read it.
You can have your idiot father write all manner of emails for you but the fact remains that it was received and read and yes, I can prove this unequivocally.
Just like I can prove that your idiot father runs your email address. Over the last 2 years I have been able to collect an extensive amount of data of him receiving an email at your email address, opening, reading, forwarding, you responding, him drafting, sending to you, you saying ‘thanks dad’ and then him sending pretending to be you. Similarly, when sending to your Defence address only, the reverse is true ie: you send it to your [personal] account with comment, forward it, he opens it, drafts a response, sends back and so on and so forth.
I have every detail down to the exact date, time, server addresses etc etc. All this has been collected for my own protection and is quite legal. If you think I can’t do exactly the same thing with iMessage, you are sadly mistaken.
So, please, continue your charade. Double down, lie and lie and lie. Whatever makes you two happy. These are the choices you have made and can be demonstrated via an electronic trail ‘beyond any doubt’ just like one other thing you are forgetting.
Why am I telling you this now? I gave you the details the other day about the emails actually but you seemed to have not listened. As for the drinking as well, that was a no brainer too. Who do you think has been moving your yellow bin [in the] mornings before the recycling truck arrives and while the bin is sitting on council property and is not part of your home address? Do you have a single clue how long I’ve been doing that for now???
Even less of a no brainer was the number blocking and iMessage. That would have taken less than a moment’s investigation before actually writing it down and sending but that ship has sailed now. The final bit you will find out about soon enough.
In the mean time, how about you just do the right thing by the kids? Is that really too much to ask?
Continually threatening to kill yourself, yelling at them, screaming that they have to ‘pick a
Side or you will lose’ and the list goes on.
Where do you go to from telling [X] that if he wants to go to school in [Town VV] you will crash your car into a tree and kill yourself? Or telling both the kids that the house will be yours soon and they will have to go to school in [City V] anyway. Or telling [X] just how much of a disappointment I to you as your son.
You did all these exact same things to [M] which is why we will be including her from now on advice from your mother. Yes, that’s correct. Your mother told [M] when she met with her recently that she ‘…100% supported her decision to remove you and your piece of shit father from her life…’. She also told [M] that she was ‘…relieved when you left [M] with [Mr C] because it would mean that she would have a better chance at a happy life…’. Boy, wasn’t she right!
And this year, for the first time in [X] and [Y]’s lives, you would not make any concessions so that they could see their sister. You also refused to even consider my offer to help mend what has happened between you two since deep down, it’s not a relationship you even care about. It was just used as a way to hurt [Mr C] exactly the same way as you are now trying to do to me. Your pattern of behaviour, the absolute 100% lies you have told to one court then the exact opposite lie in a different court and your physical and psychological harm of our children is the one thing I was hoping you would stop but you don’t know how. Your dad hides behind you, eggs on you and look where that got you with [M].
I have factual evidence against a timeline of claims that are not only lies, they are designed to defraud taxpayer money and receive Legal Aid.
You haven’t left yourself much room other than to start physically hurting them now just like your piece of shit father did to you and all of your sisters with his belt…but that’s ok remember: he stopped when you started school. I still have the letter you wrote to me where you spoke about being punished by the ‘[object]’ he kept.
You have no idea how absolutely ridiculous you look lying and fighting and trying to wrestle for control and power.
An ounce of humility…
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