Gambetto & Farrelli (No 6) - [2022] FedCFamC2F 1007

Federal Circuit and Family Court of Australia
(DIVISION 2)
Gambetto & Farrelli (No 6) [2022] FedCFamC2F 1007

File number: SYC 4559 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 2 August 2022

Catchwords: FAMILY LAW – interim defended hearing – review of decisions made by Senior Judicial Registrar – whether decisions were obtained by fraud – whether to grant leave to review orders after deadline to apply – substantial issue to be raised – what constitutes equal time – hearing de novo – Rice & Asplund application –whether to grant leave to issue private criminal prosecution of perjury – whether to dismiss an ICL – costs – application to make further submissions after judgment reserved.

Legislation:
Evidence Act1995 (Cth) ss 131, 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA

Federal Circuit and Family Court Act 2021 (Cth) ss 7, 192, 256

Family Law Rules 2004 (Cth) r 17.02

Federal Circuit and Family Court Rules 2021 (Cth) rr 10.13, 14.05, 14.07, 15.06

Cases cited:
Eaby & Speelman (2015) FLC 93-654

Gallo & Dawson (1990) 93 ALR 479

Goode & Goode [2006] FamCA 1346

Hedley & Hedley [2019] FamCA 946

Jackamarra & Krakouer (1998) 195 CLR 516

Lawson & Glenning [2021] FedCFamC2F 118

Newett & Newett (No.6) [2022] FedCFamC1A 70

Rice & Asplund (1979) FLC 90-725

Wentworth & Rogers (No 5) (1986) 6 NSWLR 534

Whitmore & Whitmore [2022] FedCFamC1A 75

Division: Division 2 Family Law

Number of paragraphs: 114

Date of hearing: 3 June 2022

Place: Melbourne (via Microsoft Teams)

Solicitor for the Applicant: Appeared in person

Counsel for the Respondent: Ms E. Lawson

Solicitor for the Respondent: Worland Family Lawyers

Solicitor for the Independent Children's Lawyer: Intercept Law
ORDERS

SYC 4559 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GAMBETTO

Applicant

AND:
MS FARRELLI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

2 August 2022

THE COURT ORDERS THAT:
1.Save as provided by order made 3 June 2022, the Father’s application filed 15 April 2022 for review of the orders made on 23 March 2022 be and is dismissed.
2.The Father’s application filed 15 April 2022 for leave and/or extension of time to review the order of 28 September 2021 be and is dismissed.
3.The Father’s application, attached by oral submission to his application for leave and/or extension of time to review the order of 28 September 2021, to set aside the orders of 28 September 2021 pursuant to rule 10.13(1)(b), be and is dismissed.
4.Any application for costs be made in writing by short submission (no more than 3 pages), headed “Application For Costs,” within 14 days of these orders and any response to be filed and served within 14 days of receipt of the short submission.

AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gambetto & Farrelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
Introduction

This is an interim parenting orders dispute between the parents, Mr Gambetto born in 1983 (‘the Father’) and Ms Farrelli born in 1981 (‘the Mother’). There is one child of the relationship, X, born in 2013 (‘the child’), who is home schooled. The Father filed an initiating application for parenting orders on 21 June 2021.
On 3 June 2022, on the papers and electronically, I heard the Father’s application for review filed 15 April 2022, of dismissal of applications to vary interim parenting orders made by Senior Judicial Registrar Jenkinson (‘the SJR’) on 25 March 2022 (‘the March orders’). The March orders were made after orders and reasons were reserved at a hearing on 9 March 2022. The 9 March 2022 hearing dealt with the Father’s applications to vary orders made by the SJR on 28 September 2021 (‘the September orders’). On 3 June 2022 the Father appeared on his own behalf with Mr V, formerly counsel, as his “McKenzie friend,” the Mother was represented by Ms Lawson of counsel and the Independent Children’s Lawyer (‘the ICL’) appeared on his own behalf
The Father sought that all orders from March be reviewed, and provided the Court with alternate orders sought, outlined below. I was to hear that matter de novo, or as an original hearing, and decide whether there should be alternate orders made. The Father also sought to review the September orders. The 21-day deadline to apply for that review would have been 19 October 2021. I have been asked to decide whether that application should be dismissed, and if not whether there should be alternate orders made.
The matter was originally listed on 3 June 2022 to Judge Blake, however was listed to me after another matter resolved by consent and Judge Blake administratively transferred this matter to me.
At the beginning of the proceedings, it was briefly discussed whether Mr V would be an appropriate McKenzie friend given that he may have an interest in the proceedings, as per Order 3 of the Father’s proposed orders, which may impede any independence of assistance that Mr V may have been able to give. However, no objections were made from the other parties and I proceeded upon the basis that the Father understood that issue and that it was a matter for the Father as to who he seeks assistance from.
Background
The Mother works as a part-time professional for two companies. The Father is a co-founder of a small business and a company director. They both reside in the northern suburbs of Sydney.
The parties commenced cohabitation in 2006 and were married in 2010. In December 2015, the parties moved together to Perth. They separated in January 2016, and continued to reside together in a family home in Perth until October 2016, when the Mother moved out. The parties were divorced on 24 December 2017. The Mother moved back to Sydney in April 2018, and the Father flew back and forth regularly until March 2020, when he moved back to Sydney. The parties both lived in the southern suburbs of Sydney, only a short drive between their respective houses, until early 2022, when the Mother moved to the northern suburbs. The Father moved nearby shortly after.
After separation, the parties agreed, acquiesced or muddled through an arrangement that the Father would not have overnight time with the child while the child was breastfeeding. It is not disputed that the child was breastfed until he was about 7½ years. In his first affidavit filed 2 September 2022 and his affidavit filed 22 September 2021, the Father complained that the child had only spent one night in his home, ever, and a total of 11 nights overnight during holidays in the previous 5 years. The Father claims that he regularly requested overnight time between separation and weaning.
Since separation, there have been multiple disputes about various parenting decisions, including the child’s diet, parenting styles, extra-curricular activities, home schooling, medical decisions (including therapy) and living arrangements. There have also been accusations of family violence from both parties.
It is clear enough that it is common ground that the child had not spent any regular overnight time with the Father at the time of the 28 September 2021 hearing.
Documents relied upon
The Mother relied upon her affidavits filed on 24 September 2021 and 2 June 2022 and her outline of case document filed on 2 June 2022. I also had regard to her outline of case filed 27 September 2021 for the purpose of ascertaining what her position was at the 28 September 2021 hearing. The Father sought to rely upon all filed documents to date, however after further discussions conceded that the most pertinent were his affidavits filed 22 September 2022 and 1 June 2022. I also had regard to his affidavits filed in December 2021 and February 2022 that supported his applications to vary the September orders and discharge the ICL. The ICL relied upon brief submissions emailed to the Court on 2 June 2022. There were no objections to my reading the SJR’s reasons published on 25 March 2022.
The September orders
On 28 September 2021, Senior Judicial Registrar Jenkinson made the following parenting orders:
PENDING FURTHER ORDER, IT IS ORDERED THAT:
1.        The child … born [in] 2013 … live with his Mother.
2.        [The child] spend time with his Father as follows:
a.Until such time as the father moves to his new accommodation and has a separate bed and bedroom for [the child]:
i.Each Thursday from 10am until 6pm;
ii.Each alternate weekend commencing 2 October 2021 from 8am until 6pm on Saturday and from 8am until 6pm on Sunday; and
iii.Such further or other times as agreed
b.Upon the father moving to his new accommodation with a separate bed and bedroom for [the child], continuing in the same cycle as established in order (a) above:
i.Each Thursday from 10am until 6pm;
ii.Each alternate weekend from 8am on Saturday until 8am on Sunday;
c.After four occasions of the time spent in order (b):
i.Each Thursday from 10am until 6pm;
ii.Each alternate weekend from 8am on Saturday until 6pm on Sunday;
d.After four occasions of the time spent in order(c) and thereafter:
i.Each Thursday from 10am until 6pm;
ii.Each alternate weekend from 3pm on Friday until 6pm on Sunday; and
e.Such further or other times as agreed between the parents in writing.
3.The Father ensure that during all periods of time that [the child] spends with him he continue to attend his activities as per the schedule attached to the Mother’s Affidavit filed 24 September 2021.
4.        [The child] shall spend time with Father on:
a.[The child’s] birthday from 3pm to 6pm if it is a day that [the child] is not otherwise spending with him; and
b.On Father’s Day from 10am to 6pm if it is a day that [the child]is not otherwise spending with him (with no make-up time the Mother envisaged).
5.[The child’s] time with the Father pursuant to these Orders shall be suspended between 10am and 6pm if it coincides with Mother’s Day (with no make-up time to the Father envisaged).
6.Notwithstanding any other order to the contrary in these orders, that at Christmas of 2021, [the child] shall spend time with the Mother from 6pm Christmas Eve to 10am on Boxing Day and with the Father from 10am to 6pm on Boxing Day.
7.Except as otherwise agreed, the Mother shall deliver [the child] to the Father’s residence at the start of time and the Father to return [the child] to the Mother at the Mother’s residence… at the conclusion of his time.
8.Each party shall facilitate telephone or Facetime calls between [the child] and the other parent at times reasonably requested by [the child].
9.Each party will inform and keep the other informed of their current telephone number, email address and home address.
10.Each party shall promptly notify the other of any serious illness, injury or accident suffered by [the child] at times that [the child] in in that party’s care including the nature of the condition, and the name of any hospital or medical centre to which [the child] has been taken for treatment.
11.By this Order, each party is authorized and permitted to contact any medical practitioner, health professional or member of the NSW Education Standards (or their delegate) to ascertain such information about [the child’s] welfare progress and development as he or she reasonably requests (without derogation from such professional’s discretion as to what information is provided.
12.That without admitting the necessity for this order [the child] shall be known as “[the child’s full name]” and the father is restrained by injunction from taking any steps to formally change his name or any part of with the NSW Registrar of Births, Deaths and Marriages or otherwise engaging in the use of a different name or any part of it, pending a determination of the Court on a final basis of the father’s application to change his name.
13.By not later than 5pm on Friday, 8 October 2021, to the extent she has not already done so, the mother shall provide to the father copies of all school reports, documents recording [the child’s] Home Schooling registration, and (if any) medical or allied health reports or assessments about [the child] for the past two years that are in her possession.
14.      Each parent be restrained from:
a.Denigrating, belittling or otherwise rebuking the other parent in the presence or hearing of [the child] or allowing [the child] to remain in the presence or hearing of any third party who is engaging in such behaviour.
b.Discussing these proceedings or any issues in dispute in these proceedings in the presence or hearing of [the child], or allowing [the child] to remain in the presence or hearing of any third party who is engaging in such behaviour
c.Using any form of physical discipline towards [the child].
The March orders
On 22 December 2021 (about 3 months after the impugned orders were made) the Father filed an application in a proceeding seeking several changes to the September orders. On 4 February 2022 the Father filed a further application in a proceeding seeking that the Mother be restrained from moving from the southern suburbs to the northern suburbs and sought more time than in the September orders. Senior Judicial Registrar Jenkinson heard submissions on 9 March 2022 about those applications and the Father’s minutes of orders sought and reserved her decision. These Father’s applications were dismissed with reasons published on 25 March 2022.
The Father’s orders sought on 3 June 2022
The Father filed an application for review of the 25 March 2022 decision on 15 April 2022, also seeking leave to review the September orders. He sought the following orders:
1. Orders 3 and 12 made on 28 September 2021 be set aside.
2. Orders 1 and 2 made on 28 September 2021 be replaced with:
“Living arrangements
School terms
1. During school terms:
a) The child live with each of the parties on the equal time week about basis with changeover to occur on Fridays 3pm.
b) After each school holiday period the equal time week about basis is to recommence after school on the first school day of the school term, with effect that the balance of that school week be spent with the party with whom the child has not spent the second half of the school holiday period, regardless of whether the child has spent the last week of the preceding school term with the mother or the father, with Friday after school changeover to recommence on the first Friday of each school term.
School holidays
2. During the school holiday periods:
a) the equal time week about basis be suspended;
b) the child spend the first half in or commencing in even years and the second half in or commencing in odd years with the mother and the second half in or commencing in even years and the first half in or commencing in odd years with the father;
c) the first half commence after school on the last school day of each school term; and the second half commence at 9.00am on the middle day of the school holiday period or if no middle day at 9.00am on the day following the midpoint and end on the morning of the first school day of the school term.”
3. Applicant and Mr [V] be both granted leave pursuant to s. 338 (1) (c) of the Crimes Act 1900 NSW to commence private prosecution of [the Mother], [Ms J] and [Ms Z] for the offences of perjury and subornation of perjury allegedly committed as part of their conduct in these proceedings.
The private prosecution
In regard to order 3, the prosecution for perjury issue, I raised that this type of issue might be better dealt with at a final hearing. In an interim hearing, I am restricted on fact finding, as set out in the case of Goode & Goode [2006] FamCA 1346 (‘Goode & Goode’). Under the traditions of the courts on an interlocutory hearing in any civil dispute, courts have always been reluctant to make factual findings where the evidence of neither party has been tested in cross-examination and without a full elaboration of the facts in dispute. Those factual disputes are usually dealt with at a final hearing. In a final hearing the judge will likely be asked to make factual findings on those and other facts in dispute provided the disputed facts are relevant.
Another issue that I raised was the question of whether I have jurisdiction in regard to a state court when I am a court under Commonwealth legislation. In addition to having the legislated powers of under the Family Law Act 1975 (Cth) (‘the Act’) this court is also a court of equity, but it is not a New South Wales criminal court. I asked the Father to consider whether this is the appropriate forum for him to press that issue, and eventually he conceded that it would be more appropriate to press this matter in a forum that can make findings of disputed facts, that is at final hearing. I made an order that he be permitted to withdraw order 3 with a notation that he intends to press the matter at final hearing.
Leave to apply for review
Under the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the FCFCOA Act’), a party can apply for a review of a decision made by a delegate (including a Senior Judicial Registrar as defined under section 7), or the Court can review a decision and make any alternate orders as it sees fit. The relevant section is below:
256     Review of power exercised by delegate
(1)A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:
(a)       within the time prescribed by the Rules of Court; or
(b)       within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
(2)The Federal Circuit and Family Court of Australia (Division 2) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 254, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.

The rules regarding reviews of orders made by Senior Judicial Registrars in outlined in the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (‘the Rules’). Rules 14.05 and 14.07 are below (notes omitted):
14.05   Application for review of order or decision
(1)A party may apply for a review of an exercise of a power referred to in the table in clause 2 of Schedule 4 by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
(2)A party may apply for a review of any other exercise of a power under these Rules by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
(3)The applicant must serve a sealed copy of the application on each other party to the proceeding as soon as practicable and in any event not later than 7 days after it is filed.
(4)An Application for Review must be listed for a hearing as soon as possible and, unless it is not practicable to do so, within 28 days after the date of filing.
…
14.07   Procedure for review
(1)A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2)      The court may receive as evidence:
(a)any affidavit or exhibit tendered in the first hearing; or
(b)any further affidavit or exhibit; or
(c)the transcript (if any) of the first hearing; or
(d)if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
[emphasis added]
Rule 15.06 permits time limits to be varied and is as follows:
15.06 Shortening or extension of time
(1)The court may at any time, on the application of a party or the court’s own initiative, shorten or extend a time that is fixed under these Rules or by a procedural order.
(2)A party may apply under subrule (1) for an order extending a time even though the time fixed by the rule or procedural order has passed.
(3)A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
Rule 14.07(1) outlines what is called an “original hearing”, and can also described as a hearing de novo to differentiate the hearing from an appeal in the orthodox sense, where the decision is assumed to be correct unless material error of fact or law is shown. Hence the Father need not prove error by the SJR for a review pursuant to rule 14.07.
In discussion with the Father I sought to clarify the procedure of a hearing de novo in the following exchange:
HIS HONOUR: I will take into account that you have the benefit of a McKenzie friend with the experience of Mr V, but, nonetheless, that duty [re: a litigant in person] still applies to me, so don’t hesitate to ask me a procedural question if you wish.
And, in that context, I want to raise with you that ordinarily the review of the senior judicial registrar’s decision is what we call in law a hearing de novo, and you’ve gone to a lot of trouble to point out what the problems and facts with the senior judicial registrar’s decision was, but my job on a review is to hear the matter as a fresh matter.
The other aspect is that this is an inquiry into the best interests of your son, but the parties themselves shape the issues so I don’t just start at a blank sheet of paper. So, in that sense, what you point out to me as the difficulties or errors in the senior judicial registrar’s decision may assist me in determining the disputes between you…
Rule 14.05 outlines a 21-day deadline to make an application for review of a decision made by a Senior Judicial Registrar. 21 days from 28 September 2021 would have been Tuesday 19 October 2021. The Father’s application for review was made on 15 April 2022, being within 21 days of 25 March 2022. Because a decision of an SJR can be reviewed within 21 days doesn’t mean it should be.
The procedure applicable to an interim parenting orders hearing is set out in Goode & Goode at [72] and [82]:
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Those principles are qualified by the observation of the Full Court in Eaby & Speelman (2015) FLC 93-654 at [18] as follows:
18.…It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:
[122] In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
I explained to the Father at some length the principles regarding fact finding on an interim hearing.
applicable law
The courts have often dealt with whether leave should be granted to make an application out of time. In May 2022, the Full Court discussed this in Whitmore & Whitmore [2022] FedCFamC1A 75 (‘Whitmore’):
17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
For the purpose of the “leave” or extension of time review I take the passage cited above as meaning, “a substantial issue to be raised in the appeal or review”.
The standard of proof
A party who makes an allegation about an event or state of affairs bears the burden of proving those allegations on the balance of probabilities in accordance with section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which is as follows:
140.     Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
The Father’s case
The Father helpfully set out his many contentions in concise terms in his outline of case including the following:
1. My Application for Review filed on 15 April 2022 is in relation to the hearing on 9 March 2022 by SJR Jenkinson. The hearing on 9 March 2022 was to consider Application in a Proceeding filed on 22 December 2021 and Application in a Proceeding filed on 4 February 2022. Both Applications were filed by me. In those Applications I was seeking variation of the Orders made at the interim hearing by SJR Jenkinson on 28 September 2021.
2. SJR Jenkinson dismissed both Applications. Reasons were delivered to the parties on 25 March 2022.
3. I contend that SJR denied natural justice to me on 28 September 2021, 23 February 2022 (procedural hearing) and 9 March 2022. I also contend that the respondent was aware of natural justice being denied, failed to make disclosures and further misled SJR Jenkinson, and as a result obtained Orders by fraud.
4. I seek to rely on the evidence contained in my affidavit filed on 1 June 2022. I also seek to rely on:
a.         All my filings in the matter to date.
b.        All respondent’s filings in the matter to date.
c.         Materials produced to and held by the Court under subpoenas.
d.        Official transcript of the hearing on 9 March 2022.
5. I am seeking orders detailed at the end of this submission on the basis that:
a. The respondent made false allegations of violence to obtain interim orders.
b. The respondent fabricated her evidence in relation to the child’s activities to obtain interim orders.
c. Materials produced under the subpoenas confirm that the child spent equal time with both parents.
d. Respondent’s conduct over the course of these proceedings confirms that the respondent’s goal is either to destroy the relationship of the applicant with the child or to control the applicant through the child.
e. The applicant is a non-violent exemplary father fully committed to his child’s future, with no criminal record and no history of violence.
f. The child and the applicant were subjected to severe emotional distress due to a), b) and d).
6. The respondent has been uncooperative for almost 2 years while represented by the same lawyer. The respondent continues to withhold disclosures and together with her lawyer actively obstructs production of evidence.
7. The respondent’s lawyer regularly attempts to intimidate me including most recently, by filing amended response seeking that the child have no time and no contact with me.
The Father further addressed his contentions in the following exchanges and articulate submissions:
HIS HONOUR: …Where there is a request to do something outside the time limit that’s set by the court rules, the first matter that is called upon is an explanation for the delay. And the other aspect that I would be assisted on is – that’s linked to the explanation for the delay is the fact that, on one view, though in slightly different circumstances, you’ve already had a crack at altering the 28 September orders. And if you are unsuccessful on the review of the 9th of – in other words, if I leave Senior Judicial Registrar Jenkinson’s decision of 9 March alone, you’re pretty skinny on your grounds to get up on the review out of time… you could address me on that would help me in that sense.
Can I also raise this with you, for example, reading [the Mother’s] outline of case of the September last year proceedings, by the end of the case she was entirely unsuccessful in limiting your time to daytime only. Now, were she to then say, “Look, I’ve thought about that and I don’t like the order and it’s three months later but I want to re-argue the case”, you would be pointing – or at least a judge in the case would be saying, “Hang on. What do you mean. That was decided back in September. We don’t just re-argue things over and over”. So that’s the context to why once a decision is made – or part of the context, it’s left alone.
…
HIS HONOUR: …The Sydney practice – and I will stand corrected by Mr L – is you’re not going to get a date for your final hearing until the case is ready and the interim skirmishes have stopped. So that worries me as well in this case, because here I am telling you you can challenge these things at final hearing, and I’m worried about when this case will ever get to final hearing if we’re constantly reviewing things and you never get there and you never get to ask – or your counsel gets to ask [The Mother] questions in cross-examination.
…
THE FATHER:   Sure, your Honour. Well, if I may start with your point about final hearing, my main concern is that by the time we have final hearing the respondent would have successfully destroyed my meaningful relationship and then would claim that it is so now and that, you know, I shouldn’t have any time with him. Now, I will address your points one by one but if I miss something could you please
…
THE FATHER:   So in terms of the application itself, what I – I would like to correct both Ms Lawson and [Mr L] that I am not seeking to improve my position. I am seeking a restoration of my position to the start of these – of the proceedings. At the start of the proceedings my time with the child was Monday and Tuesday afternoons, Thursday days and alternate weekends plus equal time during school holidays…
…
THE FATHER:   So what happened in August 2021… after I initiated proceedings and after the respondent was served with the proceedings… but didn’t respond… they unilaterally cut my Mondays and Tuesday afternoons… despite protests and alternative proposals. And, what’s more important, in her affidavit the respondent, witnessed by her lawyer who was present for that communication as well, on 24 September, said that the only time the child spent with me was Thursday days and alternate weekends which is factually incorrect. I spent half of school holidays. There was an agreement between – broken by Ms Worland in September last year where I spent half of school holidays... So essentially,
HIS HONOUR:   Hang on. Half of school holidays during the day.
THE FATHER:   Correct. Correct. Yes. But she wouldn’t agree to overnight time…. So what I’m saying in the first instance is that the orders of 28 September were obtained by fraud and Senior Judicial Registrar Jenkinson was misled as to the time that I spent but also was misled in terms of [The Mother] presenting the case as me not wanting the time and that she was always open to me having the time. So Registrar Jenkinson just made an order, 2(e), that school holidays are not mandated and everything must be by agreement. But of course [the Mother] refuses to make any agreement in relation to the holidays.
…
THE FATHER:   I didn’t know that I could apply for a review. I had no idea and it wasn’t brought up to me, so instead I was notified that the court scheduled a mediation session in November and I thought that was the procedure.
On 8 December, just before school holidays, the respondent filed her draft final orders which would have almost equal time during school holidays but then the respondent refused to consent to her own draft orders and I was left with no school – you know, three days in the first three weeks of school holidays in December/January. So I – then I filed my application on 22 December seeking clarification of holiday time and also pointing out that orders were obtained by fraud. So that application was heard on 9 March, almost three months later.
…
THE FATHER:   Your Honour, before we go any further I would also like to understand from the point of view of procedure. You mentioned that I require leave to review the orders of 28 September…
HIS HONOUR:   There’s a 21-day time limit, you see. And what you’re really asking is that I extend that time limit.
THE FATHER:   I also – I’m currently looking at rule 10.13 and specifically (1)(b).
HIS HONOUR:   Yes, so 10.13(1):
At any time the court may set aside the order if it’s obtained by fraud…
THE FATHER:   So that is my argument.
HIS HONOUR:   Yes.
THE FATHER:   But essentially when you say that – or correct me if I understood it wrong but you said you’re not going to deal with findings today, so how would I be able to prove fraud to you and vary the orders on that basis?...
HIS HONOUR:   Can I put it this way. The burden would be on you to do that – the burden on you would be to satisfy me of the fraud and when I say “can’t make findings”, when it’s your word against her word, they’re the sort of findings I can’t make. But sometimes I can make findings, for example, someone has got a document or a contemporaneous business record that demonstrates the particular point that they’re making. And, as I understand it, the fraud alleged is the – you say that the Senior Judicial Registrar proceeded on the basis – or wasn’t told about your Monday and Tuesday afternoons.
THE FATHER:   And potentially also school holidays so I’m just looking at it now.
HIS HONOUR:   Okay. What I want to know is…why didn’t you tell the registrar – I find it difficult to accept that you went through the whole hearing on 28 September and didn’t tell the registrar about what your time actually was.
THE FATHER:   Well, I specified my – what do you call it – regular time…
HIS HONOUR:   Yes. I’m just trying to find, in your affidavit, where you dealt with this at all…
THE FATHER:   So page 68.
HIS HONOUR:   Yes. Hang on.   Page 68 of 69. Yes… And annexure [28] and that was annexed to – yes, to paragraph 83. Okay. There it is, Monday one to 3 pm, [School A]. Okay. Tuesday two to 2.30. [music lessons], time with father, [sports] etcetera. Yes. Okay. All right. Okay. So the Senior Judicial Registrar had that evidence in front of her. Yes. Go on.
THE FATHER:   There is also – so before the hearing – I believe school holidays began on 23 September, so before that hearing there was an agreement in writing between myself and the respondent via her lawyers, Worland, that those school holidays would be split equally. And also based on the – July school holidays were split equally. Now
HIS HONOUR:   Hang on. Split equally but not overnight.
THE FATHER:   Correct. Correct. Yes.
The Mother’s case

The Mother’s account in her September 2021 affidavit was that the Father had been inconsistent in the days he spent time with the child, had caused considerable conflict when negotiating arrangements and at changeovers and that the Father had not spent any regular overnight time with the child. The Mother’s outline of case for the September orders hearing was that was that the Father should not have any overnight time with the child pending expert and further evidence.
The Mother’s affidavit filed 24 September 2021, like the Father’s, covered controversial events since the child’s birth and also included the following:
24. Our marriage was marked by [the Father’s] abuse towards me and his neglect of [the child’s] emotional wellbeing. He would often yell at me and threaten me in [the child’s] presence, causing [the child] to cry and become anxious.
25. Since our separation, [the Father’s] behaviour has not improved in any marked way.
26. [The Father] has yelled and raised his voice at my front door when dropping [the child] off when [the child’s] backpack had not been packed to his satisfaction. [the Father] has not provided [the child] with any clothing for the past five years, as he believes that all expenses are my responsibility since [the child] is living with me. He reminds me constantly that it was in the Agreement and still acts with aggression and a loud voice if an item is not packed – even if he made a last-minute decision for a particular activity. After yelling at me, he maintains that it is [the child’s] responsibility to pack his bag for all eventualities, despite being an eight-year-old.
…
29. I have asked [the Father] to commit to having [the child] regularly, instead of when the mood takes him, but this has led to continuous arguments whenever [the child] has extra-curricular or social activities as [the Father] doesn’t want to drive [the child] around.
…
32. I have applied for sole parental responsibility as there has been no sign of [the Father] being willing to co-operate with me regarding arrangements for our child:
(a) [The Father] and I never sit down and talk calmly about our child. Issues arising from our breakup usually come to the surface and we end up with raised voices, or [the Father] trying to dictate terms of [the child’s] development, instead of engaging in a discussion.
…
38. [The Father] has requested 50/50 care, but he regularly changes his mind in relation to [the child’s] arrangements; I have offered to be flexible with both my work and [the child’s] timetable to accommodate [the Father’s] ever-changing requests, but whenever I disagree with him, [the Father] just gets louder. He has yelled at me in front of [the child] on numerous occasions. I have suggested we both attend counselling to improve how we communicate, but he says he will not go.
…
41. [The child] has not been introduced to overnight stays with his father due to [the Father’s] irregular schedule, current living arrangements and changing moods.
…
45. [The child] has only once stayed overnight at his father’s house, when [the child] was unwell on 10 January 2021. When I called [the Father], there was no answer. He then sent me a slew of text messages that culminated in “Please do not disturb”. I was concerned for [the child’s] welfare as he has always come to me for comfort when he is ill…
46. On the days [the Father] agrees to have [the child], [the Father] brings him home within a few hours. When [the child] is with [the Father], he frequently calls me and says he wants to go home. Once [the child] is home, he is very unsettled and asks if “other dads are mean like him.”
The benefit to child of having a meaningful relationship with both parents
47. I accept the benefit to [the child] of having his father meaningfully involved in his life, but not if the time he spends with [the Father] involves him in parental conflict.
48. I doubt [the child] is capable of coping with any further changes to his school week, such as moving between our two homes or having his routine further loaded with activity.
The assertions in the Mother’s outline of case filed the day before the September 2021 hearing included the following:
5. This case impresses as a very high conflict matter, especially considering what appears to be an increase in the difficulty within the family dynamic since separation, which occurred in 2016.
…
8. The mother contends that, while it is in [the child’s] best interests to have a meaningful relationship with the father, there are several barriers to overcome before that can occur in a way that is emotionally and psychologically safe and productive for [the child]. This especially relates to the father’s lack of attunement to [the child’s] emotional and developmental needs, the father’s disrespectful attitude towards the mother to which [the child] is exposed, and seemingly proprietary stance that he adopts in relation to [the child]. Importantly, the mother perceives that this impacts her ability to parent [the child].
9. The mother proposes that there be a regularization of modest day-only time with the father in accordance with the current arrangement, until the Court has the benefit of some expert evidence, subpoenas can be issued and documents obtained (eg from [the child’s] former counsellor to whom he has spoken about his feelings about spending time with his father). Without such evidence, the Court is not equipped with the information it needs to determine the issues in a more granular way, especially as it must know that effect of a change of arrangement on [the child] and how he may respond to such a change.
The Mother’s response to the Father’s application in a proceedings filed in December 2021, which she filed on 27 January 2022, sought the following orders:
1.That the Application in a Proceeding filed by the Applicant Father on 22 December 2021 be dismissed.
2.That the Orders made on 28 September 2021 be confirmed.
3.Costs.
The Mother’s outline of case for the 3 June 2022 review hearing before me made the following contentions and the Mother sought the following orders:
Outline of contentions
1. No substantive or significant change to circumstances (Rice & Asplund).
2. Applicant Father has already had orders he is seeking heard and determined in previous hearings.
3. Applicant Father’s order seeking leave to commence contempt &/or perjury against the Respondent Mother are misconstrued and mischievous.
…
Minute of orders sought
1. Applicant Father’s review application filed 15.04.2022 be dismissed and orders made by Senior Judicial Registrar Jenkinson are confirmed.
2. Applicant Father pays Respondent Mother’s costs on an indemnity basis.
I note that the Mother sought costs in her December 2021 response, but no order for costs was made, and sought indemnity costs in her outline of case for the 3 June 2022 hearing before me.
The Mother’s counsel efficiently made short submissions that included the following:
MS LAWSON: … Can I say this though, dealing with the leave component and it being out of time. So your Honour has highlighted it, six and a-half months essentially since those orders of SJR Jenkinson. Now, the father’s lengthy affidavit material, with respect, doesn’t actually enunciate real reasons for the delay in seeking that review.
Leave of course is discretionary and the on the topic of the court’s discretion I say the following. This is a matter, if ever the court ought shut down litigation it’s this case. So it has been on foot since June 2021. There have been, on my solicitor’s calculation, 14 applications in the proceedings, one of which has been brought by my client; 14. It’s the antithesis, this case, of the tenets of the central practice direction, which the court will be familiar with, essentially dealing with matters quickly, inexpensively and efficiently.
Now, of course the father is self-represented but the court will be all too well aware that my client is not and there are repercussions to this. So on each and every occasion my client has to engage with her solicitor and/or counsel and prepare the case. A cost notice has been circulated. She has spent… over $142,000. And if we look where we are in the proceedings, with a great deal of respect, there has been no advancement. Rudimentary matters such as the appointment of an expert and payment of an expert have become essentially stagnant. So I say to the court this, unfortunately – I use the terminology “lawfare” and it’s designed to buckle the mother. And the reason why that ordinarily without prejudice document has some import in this case is that exhibit, which the court has now admitted by consent, that exhibit shows, I say, what the father is doing, this repeated litigation… look at the number of applications. And not only have they been brought against [Mr L], they have been brought against my client personally. They have been brought against my instructing solicitor and they’ve been brought against the previous barrister, Ms [U]…
My submission in that regard is leave in the court’s discretion ought not be granted. The court ought not err in favour of the father and use its discretion to grant leave in circumstances where the conflict between these parties is so exceptionally high... The number of applications, with respect, speak for themselves. So I say to the court, in respect of the leave component, err on the side of not granting leave because at least that shuts down one aspect of the conflict.
Turning to the Rice & Asplund argument, and the Rice & Asplund argument relates to 25 March 2022 orders of Jenkinson. And that’s essentially where this court is – as the father has been made aware of – is essentially hearing a de novo of what happened before SJR Jenkinson on that date. Now, the father has indicated to the court his familiarity with the Rice & Asplund decision but Rice & Asplund actually can’t just be given lip service. It actually means something and what it means is it’s a filter, a filter against children being unnecessarily embroiled in repeated litigation about the same matters.
Not only that, also the litigants and essentially the care givers. And Rice & Asplund tells us this, and it’s the comments of Evatt CJ:
It should not lightly entertain an application to reverse an earlier custody order.
And the father in this case is asking you essentially to lightly entertain an earlier custody order. Langmeil & Grange, which is a 2013 decision, again confirms what is said in Rice & Asplund that continuous litigation is essentially not in the children’s best interests. It states the obvious. And that has been found to apply in interim parenting applications such as this. Your Honour will find the matter of Hedley & Hedley [2019] FamCA particularly helpful in its application of Rice & Asplund to interim proceedings… So it’s not clear from anything the father has said to you today in court and it’s not clear from anything he has pleaded in his material what is the significant change in circumstance that he relies upon…
It’s a shame today we’re not seeking a final hearing date before this court. It’s a matter that is probably crying out for determination on a final basis to help the litigation cease. We can’t do that absent an expert report which, as we know, has been bogged down in repeated endless litigation. It’s interesting – and I make this as a passing observation – the father is clearly intelligent. He is clearly articulate. If only he could apply his many talents to bettering his position in the family law case by ceasing the litigation. The material he has filed actually militates against what he wants. If he wants ultimately to share parental responsibility – and I pause there to say that’s currently opposed – but if he ultimately wants it, the answer is not to file endless applications. The answer is to actually show that he can get along with the mother and not resort to court orders at the drop of a hat.
For the purposes of this interim hearing I do not find that the Father is engaging in “lawfare” designed to get the Mother to “buckle” or give in. That may be an issue at final hearing. I do not accept the contention I should take into account against the Father the number of applications when many have not been heard and the allegations and evidence of those is not before me.
The ICL’s case
The ICL emailed written submissions opposing the extension of time to review the September orders and pressing the dismissal of the review of the March orders. The ICL also referred to Lawson & Glenning [2021] FedCFFamC2F 118 as follows:
Lawson & Glenning [2021] FedCFFamC2F 118 (delivered ex tempore)
Reithmuller J (Division 2) – 15 September 2021
•At [9] – [15], Reithmuller H discusses the Central Practice Direction as well as the effective use of Court Resources. His Honour considers that “[t]he review application, it seems to me, was pointless… from the perspective that the order made by the Registrar was obviously a reasonable order to make in the circumstances.”
•At [27], his Honour stated as follows:
The new Court system of having Registrars undertake interlocutory work should not be treated as an invitation to simply lodge review applications without careful consideration of the need for a review application, and the importance of properly using the Court’s resources. A Registrar’s hearing should not be used as a ‘dry run’ or a ‘practice run’ at a case, but rather the main event, with a review application there in the background, in a similar way to that of an appeal if it were a judge dealing with the matter. If the system is not approached in this manner, then litigants and practitioners can expect costs and other consequential orders, to ensure that the processes of the Court are not misused or wasted.
Notwithstanding those observations, I have considered each application as an “original hearing.”
The Father’s rule 10.13 case to set aside the September orders
The Father is entitled to review a decision if the application is within time, or out of time if an extension of time were granted. An applicant in an original or de novo hearing is not required to show error. Notwithstanding that the Father insisted on conducting his case on the ground that not only error had attended the decisions of the SJR on 28 September 2021 and 25 March 2022 but he said that the 28 September 2021 decision was obtained by fraud.
Underpinning his case is the assertion that he should be regarded as having been spending equal time with the child up until June 2021, shortly before the 28 September 2021 hearing, and that the Mother had intentionally misled the Court as to the extent of that time. He claims the Court had accepted that false evidence as to time spent and that finding underpinned and determined the orders made. Hence it was said the SJR had been misled to the point where the interim decision had been obtained by fraud. Although I had initially proceeded on the basis that the Father’s review application of the September orders was based on rule 14.07 (cited above) the Father’s articulate submissions (including those cited above) demonstrated he really relied upon rule 10.13(1) and in particular sub paragraph (b). That rule is as follows:
10.13 Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
(a)it was made in the absence of a party; or
(b)it was obtained by fraud; or
(c)it is interlocutory; or
(d)it is an injunction or for the appointment of a receiver; or
(e) it does not reflect the intention of the court; or
(f)the party in whose favour it was made consents; or
(g)there is a clerical mistake in the order; or
(h)there is an error arising in the order from an accidental slip or omission.
(2)Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.
[emphasis added at (b)]
It is significant that an application under rule 10.13(1)(b), “obtained by fraud,” is not required to be made within 21 days. Rule 10.13(1) applies after the amalgamation (into Division 1 and Division 2) of the then two Family Law Act Courts on 1 September 2021. However, rule 10.13(1) is identical to rule 17.02 of the Family Law Rules 2004 (Cth) previously applicable in the Family Court of Australia, as it then was, and to rule 16.05(2) of the Federal Circuit Court Rules 2001 (Cth) previously applicable in the Federal Circuit Court, as it then was. Hence observations relevant to those rules are of assistance to the current rule 10.13(1)(b). It is apparent that “obtained by fraud” applications to set aside orders would usually be dealt with at a final hearing, not an interlocutory or interim one.
There may well be cases where a party could on an interim hearing (usually on the papers) demonstrate fraud and persuade the court to set aside the extant orders, for example where indisputable documents or business records demonstrated the deceit necessary to prove fraud.
The term “fraud” in rule 10.13 is not defined in the Rules but the everyday meaning of that term is well known and well understood. There is some difference, mainly relating to intention, in the meaning of fraud at common law or in equity but that is of no consequence in this hearing. The Australian Pocket Oxford Dictionary (5^th Ed.), defines fraud as:
1. Deception; use of false representation to gain an unjust advantage. 2 dishonest artifice or trick. 3 person who, or thing which, is other that he, she, or it claims to be.
I was not referred to any definition, nor did I need to be, as the everyday meaning of fraud is to obtain, or seek to obtain, something by an intentional lie or deceit.
The Father particularised his fraud allegations at paragraphs 5 a.-c. of his outline of case (repeated above) and in submission before me. It was clear that the Father was asserting that the Mother had by statement and omission, deceitfully or dishonestly, fabricated an account and/or failed to set out a correct account of his time with the child, and of her real attitude to the child’s relationship with him, and hence had obtained the September orders by fraud.
In the pre-September 2021 Australian Family Law (Chisholm, R. LexisNexis, Sydney, 1987) commentary dealing with the previous (but identical to the current) rule 17.02(1)(b), “obtained by fraud,” the learned author Ms Julie, a barrister, at page 7334, stated as follows:
(b) obtained by fraud: his Honour Kirby P observed in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; BC8601289 that:
… the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.
In the revised and current section of that work dealing with the current rule 10.13(1)(b) at 10.13.15 the learned author opines in identical terms. I am assisted by those observations.
In Newett & Newett (No.6) [2022] FedCFamCA 70 (‘Newett No.6’), an appeal heard on 1 February 2022, the Full Court of the Federal Circuit and Family Court of Australia dealt with an appeal including the allegation of “a judgment obtained by fraud” in a property case, although neither the old rule 17.02(1)(b) nor the current rule 10.13(1)(b) were expressly referred to. At [41] the Full Court approved Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (‘Wentworth v Rogers (No.5)’) as setting out the applicable principles to considering “a judgment… obtained by fraud” as follows:
41In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, Kirby P (as his Honour then was) with the agreement of Hope and Samuels JJA, set out the principles that apply to such applications. The second principle was described in the following terms at 538:
Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment. …
(Citations omitted)

Hence I am bound to regard Wentworth v Rogers (No.5) as applicable to this case. The full passage of the second of the six factors considered in Wentworth v Rogers (No.5) by Kirby P at [538] assists me and is apposite to the Father’s case and is as follows:
Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment… This rule has an ancient lineage… It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved.
[citations omitted; emphasis added]
In a parenting case such a test must always have overlaid upon it, and be subject to consideration of, the best interests of the child concerned. However, an order granting or refusing an application to extend time to review an SJR decision may not be a parenting order. In that case the best interests of the child would be a relevant consideration but not the paramount consideration.
In this case I proceed on the basis of whether or not I am satisfied on the balance of probabilities that false, or deceitful evidence has been given and that evidence guided or influenced the determination such that the orders were obtained by fraud. I am guided by the observations of Kirby P, notwithstanding that they were in a different context, and I am bound or at least highly persuaded by Newett No.6. Together they show that it would be sufficient to show that the “the fraud taints the judgment” (see page 539 when Kirby P discusses his fifth point) for the orders to be found to have been “obtained by fraud.”
If I found that the order was obtained by fraud I would then need to consider whether the order should be set aside on this interim hearing or not, and if so what alternate orders should be made. In doing so I would need to consider the interests of justice, including the public interest in the finality of litigation, and also consider the best interests of the child.
The orders sought in the Father’s review application were replaced by different orders in his outline of case file 1 June 2022. Generously there was no objection and I permitted the Father to do so. They are outlined above.
The evidence of the Father’s time
The Father claims that the parents had spent equal time with the child until June 2021. However, he demonstrated a unique approach to the concept of equal time. An insight into the Father’s approach to time is within [42] of his 22 September 2021 affidavit which included the following:
42.On 7 May 2019, by email, I and the respondent agreed to split custody of our son equally excluding the night time until 7 Jul 2019 due to him being breastfed. The respondent ignored my concerns about our son’s social development and homeschooling, contained in the original email.
[emphasis added]
That affidavit annexed an email of 7 May 2019 at -01, which included the following in what appears to be a parenting agreement:
1.Time with [X] (until 9 July 2019)
Mother – 3.5 days / 7 nights (as per your request and [child 1’s] habit)
Father – 3.5 days (Mon, Wed, Sat, Tue 4-6pm, Fri 4-6.30pm). If [child 1] wants to stay longer or overnight father will accommodate…
At the 28 September 2021 hearing before the SJR the Father’s affidavit filed 22 September 2022 was before the SJR. At [83] the Father set out the regime of time as follows:
83.My understanding of (the child’s) schedule immediately prior to beginning proceedings in June 2021 is detailed in Annexure [28]. Any subsequent changes to that schedule were not consulted with me and did not have my consent.
Annexure -28 had considerable detail about what it was said the child did with the Mother. It specified the time as spent with the Father, on his account, as follows:
Monday…
3pm-6pm- Time with Father (mostly [sporting activities], movies, etc)…
Tuesday…
3pm-6pm- Time with Father (mostly [sporting activities] etc) …
Thursday…
9am-3.30pm- Time with Father….
Saturday…
3pm-6pm – Time with (Mother)/Father (Alternating weekly) …
Sunday …
8am-5.30pm – Time with (Mother)/Father (Alternating weekly)
[emphasis added]
This regime of time was described by the Father in his affidavit filed 22 December 2021 at [2] as, “an equivalent of an equal time except for when (the Mother) was breastfeeding (the child).” While the Father may have felt that seeing his child roughly every second day was like equal time (and I do not make that finding), it is a stretch to describe that regime as equivalent to equal time. I note the Father also referred to some limited school holiday time, including overnight of three nights on one occasion.
In his affidavit filed 1 February 2022 the Father described the time regime differently and as follows:
7. By the time I initiated these proceedings, the respondent already reduced my time with the child against the child’s and my wishes from what effectively was equal time to the following:
a.         Each Monday – from around 1pm until late;
b.        Each Tuesday – 2pm until late;
c.         Each Thursday – from around 8.30am until late;
d.        Alternating Saturday and Sunday.
On either version the regime was not “equivalent to equal time,” although the Father is commended for looking at the quality of the time rather than the duration of it if that is what he means by “equivalent to equal time.”
The Father also asserted at [66] of his filed 22 September 2022 affidavit that in August 2022 (shortly before the first hearing), without consultation, he was advised by the Mother that the established and regular 3pm-6pm time each Monday and Tuesday (‘the Monday & Tuesday time’) would no longer be available, in the following terms:
Hi [the Father],
[The child] is now enrolled in after school [classes]… He has asked to enrol from this week so he will now be doing these classes on Mondays and Tuesdays until 5.30pm, and the in-person class will be until 6pm in [suburb A]. …
[The child] asked to do these afternoons with you, so from this week he is going to be spending Thursdays and with you during the week, which also minimises any conflicts we have between us during handovers which [the child] witnesses…
Unsurprisingly, the Father complains of the unilateral change to existing agreed arrangements contained in that email, and also the fait accompli nature of the email and the attempt to place responsibility for the decision on the child. However, the advantages for the child of the change extolled by the Mother may have been in the child’s best interest at that time. This is particularly so given the Mother has the responsibility of home schooling and if the Mother’s allegations of abuse and conflict at changeovers (denied by the Father) have substance. Further, this change occurred before the September orders and the Father’s filed 22 September 2022 affidavit set out verbatim these communications. Hence that information was before the SJR.
The Father’s fraud case therefore rests on;
(a)the position that the Mother intentionally omitted reference to the Monday & Tuesday time in her affidavit’s and in running the case, and falsely asserted she supported the relationship between the Father and the child; and
(b)the SJR was actually misled and made the determination unaware of the Monday & Tuesday time facts and the failure to support the relationship; and
(c)the SJR would have made a different decision had she known of the Monday & Tuesday time and the Mother’s attitude to the relationship; and
(d)hence the decision of 28 September 2021 was “obtained by fraud”.
The difficulty with this proposition is that the Father’s affidavit filed 22 September 2021 set out the Monday & Tuesday time events and the exact terms of the email that unilaterally stopped that time. Hence, the SJR either knew of this matter or could have been taken to it by the Father. Further, the Mother must be taken to have known that the Father relied upon the 9 August 2021 emails and his timetables in the material before the SJR.
In this interim hearing, I cannot test Mother’s allegations about the Father’s behaviour and personality and the history of the child’s time with the Father (whether with or without the Monday & Tuesday time). I likewise cannot test whether it is true or false that the Mother supports the relationship between the Father and the child. In this context, I cannot make out any facts about these allegations. An allegation is not a fact proven on the balance of probabilities.
Hence, on this interim hearing and on the untested evidence, the “obtained by fraud” allegation is not made out on the balance of probability.
Leave to extend time to review the September orders
The Father’s application filed on 15 April 2021 sought “leave to apply for review of Orders made on 28 September 2021 (by the SJR).” The Father did not press this issue in the hearing on 3 June 2022 and he made it clear that the review of the September Orders was based on rule 10.13(1)(b). However, lest it be that the Father, a litigant in person, did mean to press this application of rule 14.07 and was seeking to extend the time for review, I will now deal with that application. In this application I am guided by the long established but recently recited principles referred to in Whitmore, cited above.
The application for review is filed about 6 months outside the 21-day time limit. The Father’s explanation for delay is that he was not aware of his right to review. I will, for this application, assume that to be the case.
It is significant that the Father has already agitated a change of the impugned September orders in his two applications in a case filed in December 2021 and February 2022, and in his orders sought as heard on 9 March 2022. I accept those agitations were not on a rule 10.13(1(b) or rule 14.07 de novo review basis. However, the Mother has already met a challenge to the September orders. Hence, the explanation for the delay is both that the Father did not know of the review procedure and that the Father was challenging the impugned orders by other means. The fact that the Father has already sought to challenge or vary the September orders by another avenue is significant and seriously counts against an extension of time to bring a review.
Guided by Whitmore I must also look at the Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516 principle of a substantial issue to be raised. In this case the central allegation is the fraud allegation dealt with above and also;
·the Father’s time with the child has been unfairly reduced;
·the Father has been misled as to school holiday time;
·the child should have at least the benefit of the time he had with the Father before; and
·that time should be overnight.
Part of the context of the issue of the parents’ respective time with the child was due to home schooling. It was common ground that the Mother attended to the home schooling of the child and had done so for the whole of the child’s school life so far.
When looking at whether there is a “substantial issue to be raised,” the analysis of the law and evidence need not be as particular as on the hearing itself. Part VII of the Act, including in particular sections 60CA and 60CC(1)-(3), sets out the criterion for a parenting order (notations omitted) as follows:
60CA:Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)       the nature of the relationship of the child with:
(i)        each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)      to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)        either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)        each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
I was not referred to any specific section or factor but approach this “substantial issue to be raised” with those sections in mind.
Implicit in the September orders is the proposition that the child will benefit from a meaningful relationship with both parents. The September orders recognise the benefit of the child’s meaningful relationship with the Father. It is common ground that the Father has spent frequent, but not regularly overnight, short periods of time with the child. It is also common ground that the child lives with the Mother, was breast fed by the Mother until about 7 ½ years of age and is home schooled. The other matters relevant to the above factors are almost all controversial. On this interim hearing I cannot make findings about them and hence they do not assist my assessment of the “substantial issue to be raised” aspect of the extension of time application.
On this interim hearing, and for the purpose of assessing the “substantial issue to be raised” aspect, I apply section 61DA(3), that it is not appropriate to apply the presumption of section 61DA(1) of the Act. This is because of the myriad of competing allegations (that I cannot make findings about) that are relevant to whether the presumption is in the child’s best interests. Hence I do not regard the provisions of section 65DAA of the Act as engaged for this assessment part of the leave application.
There is one other matter that is not controversial and arises from an email from the Father exhibited to the Mother’s affidavit filed 1 June 2022 (unfortunately not paginated), on the final page. On its face it raised the issue of whether it was a without prejudice communication and hence prima facie inadmissible but subject to the exceptions of section 131(2)(a)-(k) of the Evidence Act. The Father had not raised objection but I raised the issue of inadmissibility with the parties. In the course of exploring that issue with the parties it became apparent that “the persons in dispute consent to the evidence being adduced” and so the document was admissible under section 131(2)(a) of the Evidence Act. I have proceeded to consider it. It was not disputed that the Father had sent the email. It is not disputed the email means what it says.
The email reads as follows:
Ms Worland,
I notify you 7 days in advance of the hearing on 3 June 2022, that:
1. I will seek Orders substantially the same as at the hearing on 28 September 2021 and in my subsequent applications on 22 Dec 2021 and 4 February 2022.
2. I am willing to dissolve the hearing by consent in the best interests of all parties.
3. Following are non-negotiables:
o Equal time during school holidays (by way of suspension of Order 2 (28 Sep 2021) during those holidays).
o 1 extra day and extra night per week during non-school holiday time.
o Setting aside Orders 3 and 12 (28 Sept 2021).
o Discharge of [Mr L].
I am open to dropping perjury charges if your client agrees to all of my non-negotiables by the end of this week.
I will not engage in any other discussions if your client does not agree to my non-negotiables.
Offer expires this Friday at 3pm.
Regards.
[emphasis added]
The sentence, “I am open to dropping perjury charges if your client agrees to all my non-negotiables by the end of this week,” on its face has a manipulative sting to it. It does not sit well with section 60CC(3)(i), “the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents”. To attempt to obtain children’s orders by using the leverage of threatened perjury proceedings against the other parent is inconsistent with an appropriate attitude to the responsibilities of parenthood, including sensible negotiation about parenting arrangements and dealing with each other in good faith.

I do not accept that the “otherwise as agreed” provision of order 2(e) from the September orders meant that the Mother must agree to additional time during school holidays. Hence the absence of that agreement is not a change of circumstances.
The other matters, although they are said to have occurred after the September orders, are not a change of circumstances such as to warrant or justify re-litigating the child’s living arrangements.
The Father’s affidavit filed 1 February 2022 canvasses again an event from before the September orders and his problems with the ICL but also under the heading “Further evidence” contains paragraphs 27 to 31 and I recite those here:
27. Between the period from 28 September 2021 and the date of this application, I made numerous attempts at negotiating with the respondent.
28. I offered multiple solutions and requested that the respondent makes no further false statements.
29. All my attempts were ignored by the respondent, and either ignored or rejected by the respondent’s lawyer.
30. The respondent continued to make false allegations of violence to the ICL without any evidence of such.
31. It is my concern that the independence of [Mr L] as ICL has been compromised and that he is under the influence of the respondent’s lawyer.
I do not accept those matters are a change of circumstances such as warrant or justify re-litigating the child’s living arrangements.
The Father’s affidavit filed 1 June 2022 replies to allegations of events prior to the September orders and sets out in greater detail his past activities with the child a but does not assert any new or changed circumstances save for 6(e) which is as follows:
e. I encourage unlimited creativity in [the child] and help him build structures for that creativity to flourish. We really enjoy our time together and [the child] is frequently disappointed when it is time for me drive him to his mother’s, especially on Thursday afternoons.
The September orders contemplated that the child would have his own bedroom and so that matter is not a change of circumstances. Hence the 1 June 2022 affidavit does not assert a sufficient change of circumstances.
Taking account of the December 2021 affidavit, the February 2022 and the June 2022 affidavit, the outline of case and the Father’s oral submissions to me, I conclude that the Father has not demonstrated a change of circumstances sufficient to warrant re-litigation of the child’s interim living arrangements in accordance with the rule in Rice & Asplund.
Review of Application to discharge the ICL
Again, I must consider this matter de novo or as an original hearing. The SJR considered the applicable authorities and again, with respect, I repeat and adopt her recitation of the relevant principles. The SJR also recited the relevant evidence and, with respect, I adopt her observations of the evidence all sourced from Family Court of Australia authority. I repeat the SJR’s summary of the law and evidence about the ICL controversy and it is as follows:
15In relation to that application the father relied upon his affidavit filed 4 February 2022, specifically paragraphs 36 and 37, which say:
36. I seek a discharge of [Mr L] from the role of the ICL for the child for the following reasons. [Mr L] has shown lack of competence in parenting and psychological matters, displayed poor organisational and record keeping skills, showed complete disinterest in the child’s welfare and wishes, ignored most of the substantive issues addressed to him, displayed bias towards the applicant on several occasions, refused to confirm his independence from the respondent’s solicitor when questioned about it based on third party evidence. Specific examples include:
a. At the beginning of his involvement [Mr L] confused the addresses of the parties and sent all correspondence for both parties to the respondent for several days until alerted just before mediation day.
b. [Mr L] communicated with the respondent’s solicitor via her private email. That email was not on court record or known to me.
c. [Mr L] did not have all relevant documents for the mediation on 24 November 2021 yet chose to attend unprepared.
d. Respondent’s solicitor regularly overloads [Mr L] and me with numerous emails aimed to confuse and divert from important issues. [Mr L] informed me on several occasions including on the morning of the last directions hearing on 8 December 2021, that he in fact had not had the time to go over any documents. Yet he didn’t make the court aware of it and made recommendations at that hearing affecting the child.
e. On the morning of the hearing on 8 December 2021, I called [Mr L] at 8.50am on his mobile (as per his email signature details) to enquire what his position would be on the filings, since he had not responded in writing. [Mr L] berated me for calling him outside of business hours and on his mobile. [Mr L] further stated he had no time to read any of the material supplied to him under Order 11 from 15 September 2021.
f. [Mr L] berated me for being several days late with the payment while not raising even the slightest issue with the respondent even though the respondent did not pay their portion of the fee.
g. [Mr L] misled Legal Aid as to my position on a certain matter despite him having my position in writing at least a day earlier. [Mr L] refused to acknowledge that he misled Legal Aid and berated me for setting the record straight with Legal Aid.
h. [Mr L] ignored all evidence from the child.
i. [Mr L], despite authority to do so, did not attempt to contact the elderly nanny, who is the only other person substantially involved in the child’s life or anyone else in relation to the child.
j. [Mr L] showed lack of competence in parenting matters including not understanding the difference in skillsets of paediatricians and psychologists.
k. [Mr L] displayed bias against the applicant based on allegations of domestic violence by the respondent, despite applicant alleging past violence from the respondent, and despite there being no evidence to support respondent’s claims against the applicant which the applicant vehemently has been denying since day 1.
16The ICL denied any conduct that would cause him to be discharged.
17The father made submissions expanding upon those points.
18I ultimately determined not to discharge the ICL and I gave brief reasons for that during the course of the hearing, so that the matter could progress to dealing with the other matters raised by the father.   My more fulsome reasons for that decision follow.
Allegations of misconduct or unprofessional conduct by the ICL
19The role and responsibilities of an ICL are set out in section 68LA of the Act. Specifically, section 68LA(2)(a) requires the ICL to form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child. Section 68LA(5)(a) requires the ICL to act impartially in dealings with the parties.
20The Full Court, in the matter of In the Marriage of Bennett (1990) FamLR 397, held:
We think that the role of the separate representative is broadly analogous to that of counsel assisting the Royal Commission in the sense that his or her duty is to act impartially but, if thought appropriate, to make submissions suggesting the adoption by the court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child. Unless the separate representative does this it seems to us that there is little purpose in having a separate representative
21In Langmeil v Grange (No.3) [2011] FamCA 171 Dawe J reviewed some of the authorities on this point. At [30], her Honour said:
The authorities upon which I rely include the judgment of Chisholm J, as he then was in T v L (2000) FLC 93-056. That decision has subsequently been referred to with approval by the other Judges of the Court. The Full Court in the matter of W and M and W [2006] FamCA 512, (a decision of the Chief Justice and Warnick and May JJ in 2006) relied upon the decision of Lloyd and Lloyd and Child Representative (2000) FLC 93-045 and his Honour’s decision of T v L (supra). They said, quoting Chisholm J:
An application to remove a child representative is not strictly covered by the principle that the child’s best interests must be treated as the paramount consideration. Those interests will normally be a matter of great and probably overwhelming importance. While a child representative should be removed if there are proper reasons for doing so, it would be quite wrong for a Court to remove such a representative merely because a litigant has taken the view that the representative is acting contrary to that litigant’s position or from that litigant’s point of view, contrary to the child’s best interests.
22In Gillen & Lindo [2021] FedCFamC1f 7 Gill J considered the role of the Independent Children’s Lawyer as follows:
However, it must also be acknowledged that the ICL is called upon to discharge her functions in a context of factual uncertainty. She is also called upon, in exercising her independent judgment, to do so in a legislative context where the considerations often point in different directions, particularly the primary considerations. It should be acknowledged that even where determinations made within this context are made judicially, as distinct from the exercise of professional judgment required of an ICL, case law emphasises that the one set of facts leads to no single correct answer.
23In Lloyd & Lloyd and Child Representative (2000) FLC 93-045 Holden CJ considered circumstances that may warrant the removal of an ICL (at [11]):
Without attempting to be exhaustive, there are certain circumstances, which, in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances are:
(i)if there is evidence that the separate representative had, in any way, acted contrary to the children’s interests;
(ii)if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(iii)if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(iv)if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.
24       In Gillen & Lindo [2021] FedCFamC1f 7 Gill J expanded upon that, saying:
What is necessary to bear out this criticism is that the position taken by the ICL be so clearly unreasonable to be no exercise of the ICL’s role. That is an inherently difficult position to make good where, as here, there are considerations that point in either direction… It may, in due course, differ from the ultimate determination of the case. Similarly, it may in due course differ from any further position articulated by the ICL. However, that does not render it amenable to the extreme criticism brought against it which is essentially a criticism of the manner in which the ICL weighed competing considerations in forming a view as to best interests.
25On 9 February 2022 there was a directions hearing before Judicial Registrar Maitland. The ICL submitted draft orders in relation to a family report. The father noted that the ICL had had two months since the previous hearing to submit those draft orders. It was not expressly submitted by the father, but in the interests of exploring all possible grounds upon which there might be a basis to discharge the ICL, I will consider that the father may have been suggesting that the delay in providing the proposed orders means that [Mr L] has not properly discharged his duties in this matter. To the extent that the father is making that argument, I reject it. It is not at all uncommon for parties, including Independent Children’s Lawyers, to provide a minute of proposed orders shortly prior to, or at times at, a directions hearing. It may be the case that a party or an ICL is awaiting further information before settling upon a position. It may be that the party or ICL has amended their position during the course of a hearing based upon things said by the other parties or by the court. The orders proposed by the ICL were not substantive parenting orders, they were orders, as I understand it, for the appointment of an expert and other orders of a procedural nature that ought be the subject of a directions hearing before a Judicial Registrar. Providing a minute of those types of orders, at that type of hearing, is not of itself misconduct by the ICL or acting in a manner that is consistent with his obligations in section 68LA.
26At that directions hearing, it is common ground that the Judicial Registrar stood the matter down and asked the ICL to speak with the father before making orders. However what the father initially said occurred was that the Judicial Registrar asked the ICL to “come back to her next week”. The father submitted that the ICL did not discuss with him a proposed order for him to pay the entire costs of the single expert, and had previously submitted to the court that both parents had the capacity to pay. According to the father, a week or so later he received orders that required him to pay the entire costs of the single expert.
27I asked the father to clarify what he was saying occurred, and whether he was submitting that [Mr L] and Judicial Registrar Maitland had a conversation that he was not a party to.   The following exchange took place:
THE COURT:            I just want to be clear on what you’re suggesting occurred. Are you saying that [Mr L] had a conversation with Judicial Registrar Maitland that you weren’t a party to?
THE FATHER:           Correct.
THE COURT:            That didn’t occur in open court?
THE FATHER:           Correct.
THE COURT:            That’s a very serious allegation, [the Father], not just against [Mr L], but also against Judicial Registrar Maitland that you’re making. To suggest that a judicial officer of this court and a lawyer of this court have gone behind your back and had a secret conversation, that’s a very serious allegation.
THE FATHER:           It wasn’t secret, so [Mr L] after the hearing on the 9th of February at about four o’clock in the afternoon [Mr L] made a call to me and said that such conversation was gonna happen some time next week.
THE COURT:            What, a conversation between him and the registrar without you?
THE FATHER:           Correct.
THE COURT:            This is the question that I am asking, you’re saying that there was a conversation between [Mr L] and Judicial Registrar Maitland behind your back?
THE FATHER:           Yes.
THE COURT:            And when do you say that conversation took place?
THE FATHER:           I understand it happened the uh, the week, uh, I understand it happened the week beginning Monday 14th of February.
THE COURT:            And how did you become aware of this conversation that took place, if you weren’t a party to it?
THE FATHER:           Well, [Mr L] notified me at 4 o’clock on the 9th of February that he would have that conversation, and also the orders--
THE COURT:            How did he notify you, was that orally or by email?
THE FATHER:           Orally. I can check my emails if I do not—
THE COURT:            No, no, I’m just trying to ascertain what it is – because as I say this is very serious, it’s serious professional misconduct that you’re alleging, so if that is what is going to be alleged I need to be very sure that I understand precisely what it is that you’re saying occurred. So, what, are you suggesting that, what, there was no hearing? There was no court hearing so are you suggesting that he got on the phone to the registrar or spoke to her on the street or something like that? Is that what you’re saying happened? I’m just a little bit confused about how this conversation was supposed to have taken place.
THE FATHER:           Well, in fact the registrar at the hearing on the 9th of February suggested that, at the end of the hearing she suggested that [Mr L] speak to me that same day --
THE COURT:            Yeah, and that happened --
THE FATHER:           And that he speak to her again next week.
THE COURT:            [Mr L] can you assist me? I have, according to the court file, there was a hearing on the 9th of February before Judicial Registrar Maitland where that order was made about the report, I then don’t have any hearings between then and the hearing that I conducted on the 23rd of February. Was there some mention or some involvement of Judicial Registrar Matiland between the 9th of February and the 23rd?
MR L:Not that I’m aware of. On the date that he’s talking about a minute from this office was circulated to the case manager, [the Father] and Ms Warlond, just a standard order, form of appointing an expert and list of potential experts, that was the only document circulated. I was asked by the registrar to have a discussion with the parties. I rang [the Father] I also tried to get onto Ms Warlond who wasn’t available and I had a discussion with him about the proceedings in general, a generic conversation and suggested strongly that he go and see a lawyer and get advice about the way these matters proceed, that’s it. There was no conversation about me picking or choosing or other conversation with the registrar about the expert. The order for the expert subsequently was published on the portal with no further or no actual involvement by me. A letter regarding a list of experts was circulated, [the Father] has amended his choice based on the first available in time, an expert letter was forwarded to the parties on Monday of this week and I have just restrained from sending that because part of the application today was the cost. So I’m not sure if he’s confused, but there was no conversation by me to [the Father] saying that I was going to talk to Registrar Matiland about the way the matter was going to proceed in the terms or choice of expert.
…
Allegations of bias on the part of the ICL
32In his oral submissions I asked the father to expand upon what he meant in his affidavit when he said the ICL was biased. The example given by the father was that [Mr L]’s case outline said that the father had engaged in “prodigious communication with the other party”. The father asserts that this is not supported by the facts. The father asserts that all his communication is what is required by law, whereas the mother bombarded him with messages sometimes five times per day. According to the father, the ICL has chosen to portray only one side of the argument. No party provided me any evidence of the correspondence in question.
33The father also submitted that the ICL is biased because of the way he went about engaging the single expert. Prior to the orders of 9 February being made, according to the father the ICL circulated a list of seven or eight proposed experts, and from his perspective, there was broad agreement on the expert.
34On 9 February 2022 the following orders were made:
12.That unless the Single Expert is otherwise agreed, the Independent Children’s Lawyer shall provide to the parties within seven (7) days of the publication of these Orders:
a.The names of three (3) proposed Single Experts including their fees and availability for the interviews.
13.Within seven (7) days of receipt of the panel, the Applicant and Respondent shall each:
a.Nominate one (1) of the proposed Single Experts to undertake the report.
14.The Independent Children’s Lawyer is to then nominate on the Single Expert out of the preferences provided by the parties.
15.In the event the parties fail to nominate a Single Expert within seven (7) days of receiving the list of proposed Experts, the ICL shall nominate the Single Expert.
35The father submits that the ICL, in accordance with that order, circulated a list of three proposed experts. The expert the father had initially preferred from the previous panel of seven or eight was not on the ICL’s proposed list of three. The father wrote to the ICL objecting to the expert the mother had agreed to as he was not satisfied with her qualifications. The father proposed going back to the original expert he had agreed to, or for the ICL to “pick someone independent”. The father did not choose one of the three experts on the list given by the ICL. The ICL then chose the expert nominated by the mother.
36The father further alleges bias by the ICL in his making a submission to the court at the directions hearing that the father should focus on the future, and that in a few years’ time this family may not have to follow any orders…
…
38In terms of the law relating to bias, Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 said:
A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every [ICL] in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a [ICL] to retain his or her impartiality, that is, to be fair to all concerned. However that does not mean he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.
It would be an intolerable situation if a party could successfully apply to have a [ICL] removed simply because that party perceived that the [ICL] was not “on side” or that the tide was not running in his or her favour.
39       Forrest J in Dean & Susskind [2012] FamCA 897 said at [24]:
O’Reilly J in Bondai and Bretton (No 2) …express[ed] the view that not only in cases of actual impartiality of an ICL but also in cases of perceived or apprehended impartiality of an ICL should consideration be given to discharging that ICL. Her Honour, comparing the principles that should apply to those principles as apply to the consideration of the question of whether a judge has demonstrated actual or apprehended bias, went on to say:
It is fundamental, however, that even in cases of alleged apprehended bias, some actual conduct of the person sought to be impugned be identified, and that there be a finding that such conduct, in the view of the objective bystander, realistically could give rise to the opinion that the person is not impartial.
40       In Pagliarella (1993) 16 Fam LR 688, Hannon J noted that:
It is also important to observe that, while the discussion of principles from the case law in relation to apprehended bias invariably involves judicial officers, the principles are applied analogously in relation to applications of the kind currently before the Court that involve other protagonists in a proceeding, such as an ICL.
41As stated by the High Court in Michael Wilson & Partners Limited v Nicholls [2011] HCA 48, at [31] – [33] (internal references omitted), the relevant test is:
[31] It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (in this case, in the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
[32] As the plurality in Johnson v Johnson explained, [“t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.

I do not look at this matter on the basis of whether or not the SJR was in error in any way. The reasons of the SJR assist me to understand the Father’s complaints and the procedural history in this matter. However, I do not adopt the observations of the SJR. I have made my own analysis of the evidence and whether the Father has proven on the balance of probabilities the allegations that he makes. I adopt the SJR’s observations about the law after examining the same as a convenient bundle of appropriate citations from Family Court of Australia authorities. No further or other authorities, save for Hedley & Hedley [2019] FamCA 946, were cited or referred to in the 3 June 2022 hearing. The matter proceeded on the basis that the SJR’s statement about the law were uncontroversial between the parties.
It is a serious thing to discharge an ICL because one party is unhappy with the views of the ICL and/or the way he or she is doing the job. Mere assertion or allegation, untested but denied on an interim hearing conducted on the papers, is not proof of that allegation.
Looking at the Father’s application and evidence about the ICL afresh or de novo, I am unable to identify any matter as discussed in the authorities cited above that would demonstrate a proper ground to discharge the ICL, or evidence to satisfy me that the ground or grounds are made out on the balance of probabilities. Hence the Father’s application to discharge the ICL will be dismissed.
The Mother’s application for costs
It is settled law that indemnity costs will only be awarded in exceptional circumstances. Due to time there was not an opportunity for submissions for or against a costs order. The parties are ordered to make an application for costs incurring by short written submissions.
Application to make further submissions
On Thursday 14 July 2022 the Father emailed my chambers, cc’d to the other parties, and advised that Mr L was no longer the ICL and sought to make submissions about order 12 of the September orders. I will mark that email as an exhibit and treat that email as an application to make further submissions about order 12 (the name order) of the September orders. The matters relevant to that application are:
(a)I have determined that the rule 10.13(1)(b) application to set aside the September orders fails and should be dismissed;
(b)I have dismissed the application for leave, or to extent time, to review the September orders;
(c)The Father has not demonstrated new facts and circumstances sufficient to answer the rule in Rice & Asplund.
In those (a-c) circumstances the issue of further submissions about the name order does not arise. I am also cognisant of the additional cost to the Mother and the risk of costs orders against the Father.
Because of those matters, I refuse the application to make further submissions.
Those are my reasons for making the orders that I make.

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 2 August 2022

File number:	SYC 4559 of 2021
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	2 August 2022
Catchwords:	FAMILY LAW – interim defended hearing – review of decisions made by Senior Judicial Registrar – whether decisions were obtained by fraud – whether to grant leave to review orders after deadline to apply – substantial issue to be raised – what constitutes equal time – hearing de novo – Rice & Asplund application –whether to grant leave to issue private criminal prosecution of perjury – whether to dismiss an ICL – costs – application to make further submissions after judgment reserved.
Legislation:	Evidence Act1995 (Cth) ss 131, 140 Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA Federal Circuit and Family Court Act 2021 (Cth) ss 7, 192, 256 Family Law Rules 2004 (Cth) r 17.02 Federal Circuit and Family Court Rules 2021 (Cth) rr 10.13, 14.05, 14.07, 15.06
Cases cited:	Eaby & Speelman (2015) FLC 93-654 Gallo & Dawson (1990) 93 ALR 479 Goode & Goode [2006] FamCA 1346 Hedley & Hedley [2019] FamCA 946 Jackamarra & Krakouer (1998) 195 CLR 516 Lawson & Glenning [2021] FedCFamC2F 118 Newett & Newett (No.6) [2022] FedCFamC1A 70 Rice & Asplund (1979) FLC 90-725 Wentworth & Rogers (No 5) (1986) 6 NSWLR 534 Whitmore & Whitmore [2022] FedCFamC1A 75
Division:	Division 2 Family Law
Number of paragraphs:	114
Date of hearing:	3 June 2022
Place:	Melbourne (via Microsoft Teams)
Solicitor for the Applicant:	Appeared in person
Counsel for the Respondent:	Ms E. Lawson
Solicitor for the Respondent:	Worland Family Lawyers
Solicitor for the Independent Children's Lawyer:	Intercept Law

SYC 4559 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR GAMBETTO Applicant
AND:	MS FARRELLI Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE O'SHANNESSY
DATE OF ORDER:	2 August 2022