Gerardo & Gerardo
[2025] FedCFamC1F 299
•8 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gerardo & Gerardo [2025] FedCFamC1F 299
File number: SYC 7195 of 2023 Judgment of: SCHONELL J Date of judgment: 8 May 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant and respondent both seek leave to re-open the proceedings to adduce further evidence – Where the parties have been involved in contested litigation commencing with their separation in September 2023 – Where judgment is reserved – Where the respondent submitted that the matters he is seeking to adduce are a continuation of the allegations that formed the foundation of his case at trial – Where the application if granted will prolong the litigation – Where a continuation of the litigation is the antithesis of what is in the best interests of these children and against the interests of justice – Application for leave to re-open proceedings to adduce further evidence is withdrawn and dismissed. Cases cited: EB v CT (No. 2) [2008] QSC 306
Reid v Brett [2005] VSC 18
Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36
Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 6 May 2025 Place: Sydney Solicitor for the Applicant: Mr Wahhab, York Family Law The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Ms Wilkins, Phillip A Wilkins & Associates ORDERS
SYC 7195 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GERARDO
Applicant
AND: MR GERARDO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
6 MAY 2025
THE COURT ORDERS THAT:
1.The wife’s Application in a Proceeding sealed 1 May 2025 seeking leave to re-open the proceedings is withdrawn and dismissed.
2.The husband’s Application in a Proceeding sealed 5 May 2025 seeking leave to re-open the proceedings is dismissed.
3.This matter is set down for judgment delivery and the making of final orders at 9.15 am on Friday, 9 May 2025.
4.The father is to cause:
· X born 2009;
· Y born 2012; and
· Z born 2014
(“the children”) to be delivered to the counselling section of the Sydney Registry of the Federal Circuit and Family Court of Australia (Level 2, 97-99 Goulburn Street, Sydney) at 9.00 am on Friday, 9 May 2025.
5.The Independent Children’s Lawyer or a family consultant together with the Independent Children’s Lawyer is to meet the children on that day for the purposes of having the final orders explained to them.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gerardo & Gerardo has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By way of Application in a Proceeding filed 1 May 2025 the mother sought leave to re-open proceedings that had concluded subject to the delivery of judgment. Her application was supported by an affidavit. The father filed an Application in a Proceeding on 5 May 2025 seeking leave to re-open which was also supported by an affidavit.
The matter was listed for hearing on 6 May 2025 on which occasion each party made some brief submissions. During the course of submissions on the part of the mother, her solicitor advised that he was instructed to withdraw the application which was then dismissed. Notwithstanding the mother’s position, the father pressed his application. Following his submissions, I dismissed his application. The reasons for such dismissal are as follows.
The application of the father needs to be seen in the context of the wider litigation that has taken place between these parties that commenced with their separation in September 2023. The Court has received extensive evidence in the five-day defended hearing including that of a single expert psychologist who authored a report (“the Single Expert Report”) and was cross-examined by each of the counsel for the parties and the Independent Children’s Lawyer (“the ICL”). The hearing commenced on 24 March 2025 and concluded on 28 March 2025 with judgement reserved.
Each of the mother and father sought orders that the children live with them, and they have sole parental responsibility. They differed as to time with the other parent. The mother sought orders for the father’s time to be suspended for six months and thereafter slowly increase to a maximum of alternate weekends with no time in school holidays (Exhibit 54). The ICL proposed a shorter period of suspension and for time thereafter to resume and move more quickly to alternate weekends and half school holidays (Exhibit 56). The single expert supported the children living with the mother and a suspension of the father’s time.
The father sought the children live with him and spend weekend-only time with the mother (Exhibit 58).
At the time of the hearing the children were aged respectively 15, 13 and 10.
The issues as identified by the mother were the father’s capacity to facilitate a relationship between the children and their mother, the question of the children’s safety in the care of the father, what weight the court should ascribe to the children’s views in circumstances where the single expert described the father as having a “subtle and subversive capacity to break down relationships including between the children and their mother” (Single Expert Report, paragraph 164), and the children’s fear of the father and his “considerable passive control” over them (Single Expert Report, paragraphs 85, 138 and 165).
The mother’s counsel’s Case Outline contended as follows:
40.The children were subjected by the Father to psychological, emotional and mental abuse as well as physical abuse and manipulation and alienation such that the father undermined and alienated the children from their mother in the 18-24 months prior to final separation. Since separation, the Husband has continued his abusive and manipulative behaviour as well as alienation of the children from their mother and their maternal family.
41.Throughout the relationship, the Father has instilled fear and reinforced dominance via intimidating threats and manipulation against the children and the mother.
42.The Mother contends the children are living in a toxic, intolerable, risky and dangerous family dynamic in the Father's care who subjects the children to manipulation and controlling behaviour with a view to continue his obsessive alienation of the children from their mother in an effort to gain financial advantage
43.The Father’s coercive behaviour extends beyond these proceedings, as he continues to control the three children, using them as pawns to communicate his demands back to the Mother.
44.The Mother acknowledges that during the relationship and marriage at times her parenting of the children fell short of society's expectations for which she says she herself was victim of abuse and she was reactive in her parenting of the children due to the conditioning she suffered at the hands of the father. Post separation, she was able to reflect and identify the source and cause of the issues and for which she has sought extensive counselling and psychological treatment which she continues to partake in and her psychologist will be giving evidence about this. This is not to say that the Mother seeks to shift responsibility or excuse her outbursts at the children or her parenting however she provides a plausible explanation for the way she behaved at times due to the severe stress and anxiety she experienced.
…
48.The Mother contends that the Father's denial of his conduct against the children and the mother and that his treatment of the family dog constitutes abuse even in the face of the clear evidence captured on CCTV demonstrates the total lack of insight he has and supports the Mother's views that the Husband's sole motivation was and remains and will continue to be to gain financial advantage and otherwise demonstrates his lack of capacity to protect the children. On the contrary, his behaviour post separation demonstrates the lengths he will go to alienate the children from their Mother and destroy their relationship with her. He will stop at nothing to achieve his goals.
…
51.The Father has shown repeated unwillingness to be flexible in any parenting proposal and has not shown any attempt to improve the unsatisfactory and untenable position of the children. He has made no efforts to repair the children's relationship with their Mother – indeed it appears that he encouraged and has had [X] start a job on the Saturday to frustrate the time and has failed, despite repeated requests, to advise the name of the employer or the roster. He has also instilled fear in the children such that none of them has dared inform the Mother of where the child [X] works other than [X] reluctantly telling the Mother it is at a [public venue] [M:794].
…
53.The mother’s position is that the Father will continue to fracture the relationship between the children and their Mother. It is evident that he has the ability to do so, as he has driven the children away from their entire maternal family and continues to prevent spend time with pursuant to orders from occurring.
54.The Mother is entirely aware that if Orders she seeks are granted, it will take an unknown period of time to re-adjust and re-orientate the children, however this is her sole priority. She continues to advocate that the children attend upon a psychologist to address their needs and assist. She proposes that person will help guide the family through the aftermath of the final orders.
55.The Child Impact Report recognised the significant rupture of the relationships between the Mother and the children. There was an emphasis on the need to repair that relationship. The Father remains unwilling or unable to heed this advice.
The father’s counsel’s Case Outline identified the issues before the Court to be as follows:
1.The mother was charged with, and ultimately pleaded guilty to, offences relating to assaults against [Z] and [Y]. The amended agreed statement of facts for those incidents present them as relatively minor incidents. The audio of the incidents involving the mother present a different dynamic that paints a far more serious light on the mother’s behaviour.
2.The Father asserts that there were other examples of the mother’s inappropriate and abusive behaviour towards the children in that period of 18 months to 2 years prior to separation. It is not clear whether the mother concedes that there were likely other incidents as well. It would be a strange coincidence if the only incidents that occurred that were abusive and inappropriate towards the children were those that happened to be recorded.
3.In that context, the court must have some concern about the mother’s ability to properly contain her anger and emotions in difficult situations with the children. To her credit, she has engaged with appropriate support. There must still be questions about her ability to implement any strategies she may have learned when she is stressed either as a result of the children’s behaviour or otherwise.
4.The family report writer notes that the mother “must understand that her prior verbal abuse and denigration of the children as a form of discipline has contributed to the severely strained parent-child relationship she has with all of her children. This is because the children now associate her with fear and negativity, which has led to a breakdown in communication and trust. Instead of feeling safe and supported around their mother, the children have withdrawn emotionally, becoming distant and resentful.”
…
6.The children have each expressed strong views about living with their father and not spending any overnight time with their mother. It is noted that the children are aligned strongly with their father. However, the background to that strong alignment can certainly be traced to the mother’s withdrawal from the children’s lives in the period prior to separation and her abhorrent behaviour towards the children in that period.
…
9.The court should also take into account likely impact on the children if orders were made contrary to their expressed views.
…
11.It must also be taken into account that the children’s views stem from, initially, the mother’s behaviour, at least in part. Part of the basis for each of the children’s views is fear of the mother’s behaviour.
12.The children are each now mature and their views should not be ignored. [X] is nearly 16 years old. Requiring a nearly 16 year old to live with the parent he has strongly expressed a view not to live with should only occur in the most extreme of cases.
…
14.It is submitted that the father has shown that he has the capacity to provide for the children’s ongoing needs, both physical and emotional. It is accepted that he needs to ensure that the children attend to spend time with their mother a will and that the children have a need to spend time with her mother.
…
16.It is accepted that the children will benefit from being able to have an ongoing relationship with both parents. The caveat in relation to any arrangements for time is that they must be safe.
17.The mother has, in her evidence, obtained assistance so that her previous abhorrent behaviour will not be repeated. The question that the court needs to be concerned about, is whether she is able to maintain that abstinence from prior behaviour when having difficult engagements with the children or stressful times in her life.
…
19.They can be no doubt, in circumstances of the mother being found guilty of assault both [Y] and [Z], that the mother has engaged in family violence towards the children.
…
26.[X] and [Y] of an age where their views should be given significant weight and [Y] expresses fear of her mother. The majority of the mother’s abhorrent behaviour was directed towards the youngest child [Z] and she acknowledges that managing him is likely to be her biggest challenge. Putting this child in the primary care of his abuser should not be the outcome of this case.
27.The parties’ hostile and volatile relationship is not assisting the children. It is, perhaps, unfortunate that the parties were not considered suitable for family therapy when an assessment for that was undertaken in 2024. Perhaps, after these proceedings, family therapy may be deemed suitable. If so, the parties are likely to benefit from engaging in such therapy.
Notwithstanding such matters outlined in the Case Outline on behalf of the father, by the time of submissions, counsel for the father contended that the children were safe in the mother’s care and that she did not pose a risk of harm to them.
The ICL identified the issues for hearing in their Case Outline to be as follows:
26.The ICL submits however that the evidence reveals that perhaps the greater risk to the children in this matter is the risk to their psychological and emotional wellbeing. The ICL considers that this risk arises from the parties’ inability to shield the children from the intense parental conflict and, significantly, from the father’s inability to support the children’s relationship with the mother.
27.The ICL submits that it is readily apparent that the children have been exposed to the parental conflict. Their reporting to [Dr F] of the dispute between the father and the extended maternal family is incontrovertible evidence that the father has influenced the children’s perception of the maternal family.
28.It is also not in dispute that orders for the children to spend time with the mother have not occurred as they should have. In particular, the orders made by DCJ McLelland providing for unsupervised and overnight time have been frustrated. The father’s own evidence reveals a disregard of his obligations to implement the orders that were made including for instance by his planning holidays with the children to occur during periods that they were to be spending with the mother.
…
30.The children have persistently expressed a preference to continue to live with the father and a concern about their safety in the mother’s care.
…
32.The ICL contends however that there is considerable force to the assessment of the single expert that the children’s views have been influenced by a “deeply negative narrative from their father” about their mother and her extended family. The obstacles to the children spending extended periods of time with the mother means that the children’s negative perception of the mother cannot be sufficiently challenged whilst they remain in his care.
33.The primary need of the children that is disclosed by the evidence is the need for a meaningful relationship with each of their parents.
…
36.The mother, to her credit, at least concedes that her own conduct towards the end the relationship was inappropriate and not in the children’s interests. The mother concedes that she disengaged from family life and withdrew from the children.
37.The anger and aggression which she demonstrated toward the children raises concerns about her ability to manage at times of stress involving the children. This in particular is relevant to her capacity because of the invariable challenges that she and the children would face if there a reversal of their living arrangements.
…
41.The ICL submits that the father’s parenting capacity is compromised by his seeming lack of insight into the impact of his behaviour on the children and the mother both during the relationship and subsequently. It is difficult to find any acknowledgement by the father that the children’s apparent rejection of the mother will have adversely impact the children’s wellbeing.
42.The ICL submits that there is nothing in the father’s evidence that suggests the father is likely to moderate his view of the other and her family nor that he is likely to have regard to his own role in the children’s attitude towards the mother.
THE APPLICATION TO RE-OPEN PROCEEDINGS
On the current application to re-open proceedings, the father sought orders as follows:
1.That leave be granted to the respondent father to adduce further new evidence in respect to the final parenting matter currently reserved by his honour Schonell, the further evidence being contained in the Fathers Affidavit filed herewith.
2.An order that the ICL be discharged
3.And order that the court appoint a new ICL
4.An order that the court deliver judgment not forthwith and only after proper consideration of the additional evidence adduced and appointment of a new ICL of the children for the children who will then be provided the opportunity by the court to address the additional further evidence.
5.An order that the applicant/mother sign the consent form for the children's consent either at school or externally.
6.An order that the mother attend mediation and or counselling with the children for whatever length of time as deemed appropriate by that counsellor to address the issues outlined in the [C Contact Service] report [in] April 2025 (and to which the mother has agreed) Prior to the court making any final parenting orders or determination in this matter An order that the court appoint a counsellor for the purposes of the mediation and counselling.
7.An order that the court in all of the circumstances discharge the current orders made by the court on the 28th March 2025 and orders made on the 5th December 2024.
8.An order that the mother have contact with the children 4pm -8pm each Thursday each week and 12noon to 4pm each Sunday until the completion of the counselling and mediation process in completed
9.An order for [C Contact Service] be appointed for handover and collection at each contact block
10.An order for the applicant to procuce [Z] enrolement application to [M School] and all supporting documents.
11. An order that each party pays there own costs.
(As per original)
The father’s affidavit records that the children have refused to attend time with the mother, that the relationship has broken down because of the children’s mistrust of the mother, that the children expressed concern to him about a CCTV camera in the home, and that they did not feel safe with the mother. The father says that he has encouraged the children to go. He records as follows:
Unfortunately, the children are just not comfortable and do not feel safe living with their mother and there is a mutual distrust of each other. The attempt by [Ms Gerardo] to assert I am encouraging the children not to obey court orders is a gross attempt to mislead his Honour and lead the Court away from the direct evidence and from the children themselves that I encourage and force them to attend the changeovers and go with her.
The father attaches to his affidavit what he says are photographs of the children showing their distress and sadness at having to spend time with their mother. He says:
The children are constantly disappointed by [Ms Gerardo’s] conduct, in promising to attend and not attending important events in their lives…
The father in submissions agreed that the matters referred to in his affidavit are a continuation of the allegations that formed the foundation of his case. When asked to identify what would constitute some new matter, he referred to a reference in a C Contact Service report where the mother reportedly said she mistrusts the children. The father emphasised that he has encouraged the children to go and has done all that he can.
APPLICABLE LAW
In Reid v Brett [2005] VSC 18, Habersberger J said:
41.The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:
(a) the further evidence is so material that the interests of justice require its admission;
(b) the further evidence, if accepted, would most probably affect the result of the case;
(c) the further evidence could not by reasonable diligence have been discovered earlier; and
(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.
(Footnote omitted)
In Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266 (“Smith v New South Wales Bar Association”) the plurality observed:
It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised…
(Footnotes omitted)
DISCUSSION
These parties have been in high conflict in relation to their children for now nearly two years. The application of the father if granted will prolong the litigation. A continuation of the litigation is the antithesis of what is in the best interests of these children.
The discretion to grant leave is guided by the interests of justice; the essential issue being whether the Court is more able to do justice on the facts and circumstances of the case if the application is granted. In proceedings involving children, there is another consideration, albeit not determinative, namely, what orders are necessary to be made in the best interests of the children. I am not satisfied that the evidence for which leave is sought to re-open is so material that the interests of justice require its admission.
I am not satisfied that the evidence for which leave is sought to re-open would, if accepted, most probably affect the result of the case. Indeed, it is just but more of the same, namely; the children asserting that they do not wish to spend time with their mother overnight, the weight that should be ascribed to the children’s views, the effect to which the children’s views are affected by the father’s conduct and/or behaviour, and the mother’s capacity to be able to care and parent the children.
As Applegarth J observed in EB v CT (No. 2) [2008] QSC 306 referencing the High Court’s decision in Smith v New South Wales Bar Association, in the following terms:
5Reference by the High Court to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.
For the above reasons I am not satisfied that there is any proper basis for these proceedings to be re-opened.
These are my reasons for why leave to re-open proceedings to adduce evidence is not granted.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 8 May 2025
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