Inglis & Torres (No 2) - [2024] FedCFamC1F 557

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Inglis & Torres (No 2) [2024] FedCFamC1F 557

File number(s): SYC 2881 of 2020

Judgment of: ALTOBELLI J

Date of judgment: 12 August 2024

Catchwords: FAMILY LAW – PARENTING – Undefended hearing – Where the applicant did not attend the final hearing – Where the applicant’s informal application for adjournment was denied – Where final orders are made by consent – Where the Court is satisfied that the evidence supports the orders sought – Where the respondent makes an oral application for a passport order – Where the respondent makes an oral application for an injunction – Where the Independent Children’s Lawyer consents to the oral applications – Where leave is granted to make these oral applications – Where the respondent seeks indemnity costs – Where indemnity costs are granted – Where the Independent Children’s Lawyer seeks costs against both parties – Where the applicant is ordered to pay the entire costs of the Independent Children’s Lawyer.

Legislation: Family Law Act 1975 (Cth) ss 4AB, 68B, 102NA, 117, 117(2A)

Cases cited:
Bhatt & Acharya (Costs) [2017] FamCAFC 71

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Lenova & Lenova (Costs) (2011) FLC 93-467; [2011] FamCAFC 141;

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

Peake v Benedict (Costs) (2014) 53 Fam LR 476; [2014] FCCA 2723

Division: Division 1 First Instance

Number of paragraphs: 28

Date of hearing: 12 August 2024

Place: Sydney

Counsel for the Applicant: Litigant in person (did not participate)

Counsel for the Respondent: Ms Murphy (direct brief)

Counsel for the Independent Children's Lawyer: Ms Reid

Solicitor for the Independent Children's Lawyer: Ark Law Lawyers
ORDERS

SYC 2881 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR INGLIS

Applicant

AND:
MS TORRES

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

12 AUGUST 2024

Amended pursuant to r 10.13(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 20 August 2024
THE COURT ORDERS ~~BY CONSENT~~ THAT:
1.Pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), orders are made by consent as between the Respondent and Independent Children’s Lawyer, and on an undefended basis, in accordance with the documents marked “A” and “B” dated this day and attached hereto.
2.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) (“the Act”) 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.
3.All outstanding applications otherwise are dismissed, and the matter removed from the list of cases awaiting finalisation.

THE COURT ORDERS THAT:
Leave to adjourn
4.The Applicant’s application for an adjournment is dismissed.

Leave to inspect
5.Leave is granted to the parties’ legal representatives and the Independent Children’s Lawyer to inspect all subpoena material produced by New South Wales Police and the Department of Communities and Justice.
6.Leave is granted to the Independent Children’s Lawyer to inspect all subpoena material produced by C Lawyers, for the purpose of ascertaining whether the material produced may be subject to professional legal privilege.
7.If the Independent Children’s Lawyer forms the view that no privileged material was produced, leave is granted to the parties’ legal representatives to inspect all subpoena material produced by C Lawyers.

Oral applications
8.Leave is granted to the Respondent to make an oral application to permit the Respondent to apply for an Australian passport for the child X born 2019 (“the child”).
9.Leave is granted to the Independent Children’s Lawyer to make an oral application that the father be restrained under s 68B of the Act for the personal protection of the Respondent and the child.
10.Leave is granted to the Respondent to make an oral application that the Applicant pay her costs on an indemnity basis in these proceedings.
11.Leave is granted to the Independent Children’s Lawyer to make an oral application that the parties each pay an even share of their costs in these proceedings.

Restraints
12.Pursuant to ss 68B and 114 of the Act, the Applicant is restrained from:
(a)entering or remaining in any place of residence, employment or education of the Respondent or the child; and
(b)from communicating with the Respondent or the child, other than as permitted in these orders.

Costs orders
13.Within 28 days of the date of these orders, the Applicant pay the Respondent’s costs on an indemnity basis as assessed by the Court in the sum of $50,000.
14.Within 28 days of the date of these orders, the Applicant pay the Independent Children’s Lawyer’s costs, as they pertain to him, in the sum of $7,315.
15.Within 28 days of the date of these orders, the Applicant pay the Respondent’s share of the Independent Children’s Lawyer’s costs, in the sum of $7,315.

THE COURT NOTES THAT:
A.The matter was listed for final hearing commencing on 12 August 2024 at 10.00 am. When the matter was called, there was no appearance by or on behalf of the Applicant. My chambers attempted to contact the Applicant via telephone and email with no response. The matter was stood down until 11.30 am to give the Applicant an opportunity to appear. The Applicant was advised that the matter may proceed on an undefended basis in his absence. As at 11.33 am, there was no appearance by the Applicant.
B.Pursuant to r 10.13(1)(a) of the Rules, the Court may vary or set aside a judgment or order made in the absence of a party.
C.In the event that the Respondent seeks to make an application pursuant to Notation B hereof, the Respondent must make such application within 28 days of the making of these orders and ensure that he contemporaneously files an affidavit in support explaining his absence and lack of participation in these proceedings.
D.The Independent Children’s Lawyer did not object to the oral application described in Order 8, and the Respondent did not object to the oral application described in Order 9.

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 Inglis & Torres has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
“A”
1.That the Mother shall have sole parental responsibility and sole decision making for all short and long term issues for the child X born 2019.
2.That X shall live with the Mother.
3.That the Father spend no time with X.
4.That the Father be at liberty to send letters and cards for birthday and Christmas to an address provided by the mother to the father via the father's email address.
5.That the father and mother provide to the other an email address for the purpose of Order 4.
6.The mother be permitted to change the child’s name to X Torres and to effect such change to take all steps necessary to change the name of the child X’s birth certificate to X Torres. Including by lodging an Application to Correct an Entry Form with the NSW Registry of Births Deaths and Marriages.

“B”
7.For the purposes of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the child, X born 2019 is permitted to have an Australian passport and the mother is permitted to apply for, or renew, the child’s Australian passport and the father’s consent to the child having an Australian passport is dispensed with.
8.The mother is to hold the child’s Australian passport.
9.The child is permitted to travel internationally with the mother.

EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
ADJOURNMENT APPLICATION

The matter comes before me for final hearing today. It was originally listed at 10.00 am. There was no appearance by the father (“the father”). After causing my chambers to communicate with the father, the matter was stood down until 11.30 am. There was no appearance by the father. I took evidence, and heard submissions, and was about to deliver ex tempore reasons for judgment at 12.30 pm when the father emailed my chambers. The terms of the email became the Court's Exhibit A. In this email, he seeks an adjournment. I decline to grant the adjournment. The Court does not deal with any application, let alone an adjournment application, electronically.
There is an abundance of material before the Court most of which has been adverted to during the course of submissions and the exchange between the bench and bar table, that satisfies the Court that the father has at all relevant times since this matter was first listed for hearing, been aware of this date. He has at all relevant times had the benefit of a grant of legal aid pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”). The totality of the evidence, including for example, the documents produced by his own former solicitor, indicate that he did not give instructions.
For him to now seek an adjournment at this last moment, in circumstances where any lack of legal representation seems to be attributable principally to him is, in the circumstances, unreasonable and is another example of the abuse of process, the litigation abuse, that I will advert to in my reasons for judgment in the substantive matter. The application for adjournment is dismissed.
I make orders in terms of the document that I have marked A, which I have initialled and which I have dated today’s date. It is page eleven of the Ms Torres’ (“the mother”) Case Outline Document filed 7 August 2024, and I make Orders 1–6 inclusive of the document, and I provide the following short ex tempore reasons.
Observations
I make this preliminary, but important observation. In my long experience in family law and on the bench, I cannot recall a case where the evidence at the final hearing was so abundant and clear in its indication that the conduct of the father, in his relationship with the mother, both before and after separation, and certainly within the conduct of this litigation which started in 2020, falls so neatly into the definition of coercive controlling violence for the purposes of s 4AB of the Act. Any analysis of the facts of this case would not only lead to the conclusion that I have made but would also demonstrate how the litigation process itself was abused in a way to continue the perpetration of family violence against the mother.
The strong impression that is formed, and the finding that I make based on the totality of the evidence before the Court is, that the father has sought in every means possible to coerce and control the mother and their child; X. He has used the litigation process to do so. He has manipulated the system to this end. It is of concern that it took almost four years for the evidence to be comprehensively marshalled and presented to the Court so that the mother’s fundamental allegations and concerns about the father have been so resoundingly vindicated.
PARENTING
The matter before me relates to X. X is currently five years old. He lives with the mother, and notwithstanding the terms of interim orders made by his Honour Austin J on 15 August 2023, X spends no time with the father. I make this observation. If his Honour had available to him the extensive evidence that is available to me, it is hard to imagine that an order would have been made in terms of that made by his Honour.
I further make the observation that, notwithstanding the assertions made by the father in various communications, affidavits and correspondence, the cause of the orders not being implemented lay very much at his feet. The mother’s evidence is replete with examples of the father, in effect, choosing to prioritise other things, including his work, over spending time with X. The fact that the order made 15 August 2023 has not been complied with is attributable to the father more than the mother. In hindsight, with the benefit of the material before the Court today, it was a blessing in disguise for X not to have spent time with the father in accordance with that order.
A very useful chronology of the long history of this matter, and the competing contentions made by the parents, is found from pages two to seven inclusive of the Independent Children’s Lawyer’s Case Outline filed 9 August 2024. I incorporate that document as Annexure One to these, my reasons for judgment.
As comprehensive as this chronology is, indeed, as helpful as it is to the Court, the document does not convey the full extent of the evidence and the concerns that have led the Court to make an order for the mother to have sole parental responsibility and decision-making in relation to X, for X to live with the mother, and for X to no time with the father.
The totality of the evidence suggests that any time between X and the father would be fraught with risk to him. The evidence indicates that the father struggles with consumption of alcohol, struggles with his mental health, and has perpetrated family violence; not just in his relationship with the mother, but in multiple subsequent relationships. The evidence demonstrates a manifest lack of insight by the father into the impact of his behaviour, not just on the mother, but also on X.
If X had a meaningful relationship with the father, which was probably the case at some time in the past, that is no longer the case now. I am satisfied that, on balance, there is no benefit to X of having a meaningful relationship with the father. Based on the evidence before the Court, I am satisfied that there is the need to protect him from physical or psychological harm whilst in the father’s care.
The father, throughout these proceedings, and certainly in the last period before the final hearing, has demonstrated a significant disregard not just for his family, consisting of the mother and X, but for those who are integral to the administration of justice, including the Independent Children’s Lawyer, the mother’s legal representatives, and more recently the Court. His communication with the Court has been inappropriate, potentially offensive, and to use the words of the mother’s counsel, also potentially contemptuous.
The father believes him to be a law to himself. The mother’s evidence indicates, and I accept, that he has never paid child support as assessed, and I accept the submission that he is unlikely to do so in the future. He has not met the costs order that was made against him earlier in these proceedings. His communication with the mother is laden with denigration, abuse and threats. It could only be regarded as demeaning, and as an attempt to further control her behaviour. The father has manifested attitudes that are completely inconsistent with being able to be a responsible parent. There are significant concerns for the Court about his capacity to care for X.
Both the mother and the Independent Children’s Lawyer agreed to the making of the orders in terms of those that I have made. In the circumstances, I have no doubt, based on the evidence before me, that these orders are in the best interests of X. I granted leave to Ms Murphy, counsel for the mother, to make an oral application in relation to a passport order. This was consented to by the Independent Children’s Lawyer. I recognise that this order was made without notice to the father, but I am satisfied that the circumstances compel this conclusion.
It is highly unlikely that the father, given his track record, would cooperate with the mother if she sought an Australian passport for X. The evidence suggests that the father caused a UK passport to be issued for X. Given the orders that I have made, and noting the inadequacy of the usual sole parental responsibility order under the Act to assist the mother with obtaining a passport for X, I am satisfied that should be made, and I make it in terms of the order proposed by the mother and supported by the Independent Children’s Lawyer that I have marked B, initialled, and dated today’s date.
COSTS APPLICATION
A costs application is made today. Costs applications, of course, are determined by s 117 of the Act. With the general rule being that each party should pay and bear their own costs (s 117(1) of the Act). The circumstances in which that rule should be departed from include those set out in s 117(2A) of the Act.
It is clear that, for the purposes of paragraph (e) of s 117(2A) of the Act, the father has been wholly unsuccessful in the proceedings (Peake v Benedict (Costs) (2014) 53 Fam LR 476 at [138]). Of course, the only gauge of what the father sought is his original application to which the Court has had regard to, and, of course, the Court has also had regard to the affidavits that he has filed in this matter. All of this, notwithstanding his non-attendance and participation in the final hearing. It is clear that in circumstances where the Court has found it in the best interests of X that the mother has sole parental responsibility, that X lives with the mother, and have no contact with the father other than the limited communication that is contended for by the mother, that the has father been wholly unsuccessful in proceedings.
The mother and, indeed, the Independent Children’s Lawyer, both seek indemnity costs. The Court recognises that the threshold for the making of an indemnity costs order is quite a high one (Kohan and Kohan (1993) FLC 92-340). Nonetheless, the facts of this case are egregious. The father’s conduct, not just towards the mother and to X, and to the other parties, the legal representatives, and the Court show a very high standard of disregard for the Court process and for the law. I’m satisfied, in the circumstances of this case, that an order for indemnity costs is appropriate (Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233).
Little is known about the financial circumstances of the father, although his correspondence with the Court suggests that he is working in the world of finance. Indeed, international finance, given the references in his own emails to other countries. The father was asked to produce to the Court today evidence in relation to his overseas travels for the last twelve months. Of course, he wasn’t here, and he didn’t produce. An interesting aspect of this case is that, not only the evidence that he does produce to the Court, but his communication, and some of the mother’s evidence, leads to the strong inference that he is outside the jurisdiction of Australia even today, the date of this hearing.
One document that was provided in the course of his adjournment application by email was tickets for travel overseas. It was hard to not notice the fact that the father was flying business class, which makes one think that, perhaps, he has the financial wherewithal to meet a costs order. Even if that were not the case, of course, the law is clear. Impecuniosity is not a bar to the making of a costs order where the circumstances otherwise warrant (Lenova & Lenova (Costs) (2011) FLC 93-467; Bhatt & Acharya (Costs) [2017] FamCAFC 71; Cross & Beaumont (2008) 39 Fam LR 389).

The mother seeks an order for costs in the sum of $50,320. I’m going to round it down to $50,000. They are the costs inclusive of today, including preparation of her counsel Ms Murphy, who has persisted admirably in the representation of her client. Given that this litigation has been going on since 2020, the sum sought is modest. I have no concerns about the reasonableness of making an order that the father pay the mother’s costs of the present proceedings as assessed by the Court on an indemnity basis at $50,000. Such costs are to be paid within 28 days.
The Independent Children’s Lawyer seeks costs in the sum of $14,630, with each party to pay half of that, or $7,315. There is no reason why the Independent Children’s Lawyer should not be paid her costs. I order the father to pay the Independent Children’s Lawyers costs in the sum of $7,315 as they pertain to him, within 28 days. I further order the father to pay the mother’s share of the costs of the independent Children’s Lawyer namely $7,315, also within 28 days.
I have taken the somewhat unusual course of ordering the father to pay the mother’s share of the Independent Children’s Lawyers costs. In the circumstances of this case, I consider it entirely appropriate given the conduct of the father in these proceedings. I make cost orders, of course, having no appreciation of the extent to which it might be enforceable. Nonetheless, the cost orders have been made. I’m satisfied that the cost orders are appropriate, and I’m more than satisfied that the orders in relation to X are also appropriate.
INJUNCTIONS
I’ve granted leave to both counsel for the mother and the Independent Children’s Lawyer to make an oral application for an injunction under s 68B of the Act. Such an injunction is designed to protect the mother and X from the potential adverse reaction of the father on receiving or being made aware of the orders that I’ve made and the reasons for why I have made them. The evidence before the Court satisfies me that because of the concerns that have been expressed, namely, the father’s seeming struggles with alcohol consumption and multiple references to the use of drugs. Which perhaps I did not highlight in my original reasons. The father’s struggles with his own mental health and with attitudinal issues that I have adverted to, especially his seeming indifference to authority figures, including this Court.
I am satisfied that there is a risk of the father seeking to ventilate, to say the least, his frustration and anger on being made aware of the outcome of the proceedings today. The most likely targets of that frustration are the mother and X, who are the most vulnerable. An order under s 68B of the Act will assist to some extent, though noting that the mother is well represented.
If something does happen, perhaps reliance on State law might be more effective than the order that I am about to make. I think it is appropriate that I make an injunction under s 68B of the Act, for the personal protection of the mother and X to the effect that the father be restrained from entering or remaining in any place of residence or employment of the mother and X, any place of education of X, and, that the father be restrained from any form of communication with the mother and X other than as permitted in the orders that I have made.
To the extent that the latter order is not, in fact, a s 68B injunction, but an injunction under s 114 of the Act, I certainly make it on that basis, in any event.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated: 21 August 2024
ANNEXURE ONE

DATE EVENT SOURCE PINPOINT

1975 Applicant father was born. Mother’s Affidavit 15/07/2020 3

1975 Respondent mother was born. Mother’s Affidavit 15/07/2020 2

2018 Parties commenced a relationship Mother’s Affidavit 15/07/2020 4

2019 Father alleges prior, during and post X`s birth he regularly worked from home and was active in the care of X and supported the mother. Father`s Affidavit 12/08/2020 59

2019 Child subject to the proceedings, X was born. Mother’s Affidavit 15/07/2020 5

Domestic Violence / Abuse

Mid to late 2019 Mother alleges the father returned home intoxicated on several occasions and wake both her and X up between 2:00am – 4:00am Mother’s Affidavit 15/07/2020 21

Father denies there is a culture of verbal abuse or excessive drinking. The father claims there has been no history of verbal or violent abuse as alleged by the mother Father`s Affidavit 12/08/2020 122 & 124

Mid-2019 Mother alleges the father physically assaulted her while she was holding X. Mother’s Affidavit 15/07/2020 19

Father denies this ever occurred. Father`s Affidavit 12/08/2020

14/10/2019 Mother and father separated on a final basis. Since the separation the mother alleges X and her live alone in Suburb B at a property the mother jointly owns with her ex-husband. Mother’s Affidavit 15/07/2020 6 & 11

In or about Oct 2019 –
Jan 2020 The father alleges there was a sporadic contract in place which did not involve supervised contact. Father`s Affidavit 12/08/2020 127

09/02/2020 Mother alleges the paternal grandmother has made no attempt to make contact with her or X since the separation beside from one email to the mother in order for her to collect her belongings. Mother’s Affidavit 15/07/2020 28

Early 2020 Mother and father agreed for the father to see X. The mother alleges when they showed up to the fathers’ home, he was hungover. The mother also alleges she noticed the father did not have essential items needed for the care of X such as a change-table and nappies. The mother also alleges the father forcefully pushed her when she attempted to leave the fathers home. The mother ended up contacting the police consequently the father gave X back to the mother. The mother made a police report at the police station. Following this incident, the mother allegedly ceased all correspondence with the father. The father alleges he has not been interviewed by the police over this incident. The father claims he has not conducted himself in a manner that would justify the mother obtaining an AVO against him.
Mother’s Affidavit
15/07/2020

Father`s Affidavit
12/08/2020

36 & 40 & 42-
44

119-120

09/02/2020
&
12/02/2020 Mother alleges the father sent intimidating and harassing text messages to her. Mother’s Affidavit
15/07/2020 45

Risk of Harm towards the Child/Violence

Mid-2022 The Father states that the mother alleges that he grabbed her phone at a handover in mid-2022 (post the last hearing on Monday 6th June 2022 before Justice Monahan). He was arrested on one count of DV, based on the phone recording. The father alleges there had been no DV incidents between him and the mother prior and Justice Monahan noted this in his 6th June 2022 orders. The mother had also terminated the contact on the Thursday 9th June 2022 prior to the incident. The father denies these allegations and states that the mother was filming the entire handover and making X deliberately upset. The father denies grabbing the mother’s phone. He states that he waited in the car patiently for approximately 15 minutes for the mother to affect the handover Father’s Affidavit
14/11/2022 Page 3
[9], [10], [13]

Not dated The mother alleges that there is a risk of harm to X in the unsupervised care of the father to the father’s alcohol and drug abuse. Mother also states that DCJ indicated assessed issues and concerns of substance abuse and domestic violence on several dates and each report noted several risks of harm towards X. And, also states that the DCJ reports noted one of the father’s Children, D, disclosing how the father drinks, regularly hits him in the back of the head and legs and seeing drugs in his home. Mother’s Affidavit
10/08/2023 Pages 3-4
[7-13]

Jan 2022 –
Jun 2022 The mother alleges that the father made numerous excuses not to see X since January 2022 – June 2022 and that the father cancelling contact became more frequent with time. When the mother did cancel contact for the father it was for genuine reasons when she and X had COVID Mother’s Affidavit Sealed
at 05/08/2024
Page 25-27
[107 (j-z) -
108]

Annexures
Marked “X” to
“AE”

Mid-2022 The mother alleges that the father assaulted her during handover. X was clutched onto the mother crying and refused to let her go. The father got out of the car and grabbed X out of the mother’s arms while he cried hysterically and the father forcefully put X into the child restraint seat. The mother began to video record what was occurring. When the father noticed the mother holding her mobile phone, he grabbed and pushed her causing her to fall and tried to take the phone from her. He then got back into his car and drive away while X cried and screaming inside the car. The mother noticed the father’s daughter E smirking and laughing at the incident. The mother went back inside the house and called the Police who took a DVEC statement and later charged the father and an ADVO was made. Mother’s Affidavit Sealed
at 05/08/2024
110] – [117]

AND

Annexure
marked “AF” (a
copy of the
ADVO)

Early 2023 The mother alleges that the father was found not guilty of the charges towards the mother however the Police Constable that took carriage of the matter was not present in Court that day and the mother was not told to attend Court to give evidence. Mother’s Affidavit Sealed
at 05/08/2024 Page 29 -30
[120-124]
AND
Annexures
marked “AG” –
“AH”

16 Feb 2023 The mother sent the father an email that she would not be attending contact nor did she want him attending her home. The father replied via email that same day stating “I have no intention of going anywhere near you or your property”. Mother’s Affidavit Sealed
at 05/08/2024 Page 30 [127]
AND
Annexure
marked “AK”
(a copy of the
email
correspondence)

Father’s Behaviour During Contact

Not dated The mother alleges that on occasions, during contact with X, she has witnessed the father consume alcohol; a bottle of wine, and that this has been a regular occurrence. The mother also alleges that the father elects to sit in a café or restaurant or do his grocery shopping at Coles instead of using the indoor and outdoor play area for children to spend time with X. Mother’s Affidavit Sealed
at 05/08/2024 Page 34
[144-145]

Not dated The mother alleges that on more than one occasion during the father having contact with X, there have been incidents of abuse and violence between the father and his new partner in the presence of X and the mother. Mother’s Affidavit Sealed
at 05/08/2024 Page 34-35
[146-148]

23 Feb
2023 The mother alleges that she filed an Application in a Proceeding to amend the existing orders in place. Mother’s Affidavit Sealed
at 05/08/2024 Page 31 [130]

28 Feb
2023 The mother alleges that the father filed a contravention order. Mother’s Affidavit Sealed
at 05/08/2024 Page 31 [129]

Sept 2023 –
Oct 2023 The mother alleges that the father cancelled contact on multiple occasions. Mother’s Affidavit Sealed
at 05/08/2024 Page 36
[154-159]
AND
Annexures
Marked “AR”
to “AV”

12 Oct
2023 The mother alleges that during contact, X wasn’t feeling well and during contact, called her on his watch phone begging her to pick him up and asking her “Mummy, why did you leave me?” When she arrived to pick him up, she saw him asleep on the table at McDonalds and started to cry when he woke up. The father was working on his laptop. X said to his mother “Mummy I don’t want to go with [Mr Inglis], why did you make me go?” Mother’s Affidavit Sealed
at 05/08/2024 Page 37
[160]

Oct 2023 –
Dec 2023 The mother alleges that the father resumed cancelling/postponing contact with X using his work as an excuse and communicated this via SMS. Mother’s Affidavit Sealed
at 05/08/2024 Page 37 – 38
[161-169]
AND
Annexures
Marked “AW”
to “BA”

Parent’s Concerns

Not dated The mother alleges that she notices X being distressed and anxious at handovers and not being comfortable whilst in his father’s presence which has been an ongoing concern. The Family Report by Ms F dated 2 March 2022 noted these observations and how the father simply does not engage with X. The report also noted that X is an at unacceptable risk of harm with the father due to lack of boundaries with respect to his behaviour, treatment of partners and consumption of alcohol. Mother’s Affidavit
10/08/2023 Page 7
[24-25]

Not dated The mother alleges that the father has never sent a card or a present to X for his birthday or any other festive occasions such as Easter or Christmas and has very little connection with the X; he never engages with him during contact not even since X was born and continues to not engage with him and is always on his laptop during contact. The mother states that X sees his father as a stranger and refers to him by his first name instead of Dad. Page 38
[170-172]

Not dated The mother alleges that X remains distressed, anxious and reluctant to go on contact visits whereby the mother would have to encourage him to go. X would tell his mother words to the effect of “Mummy, is it [Mr Inglis] day today? I don’t want to go?” Mother’s Affidavit Sealed
at 05/08/2024 Page 39 [174]

Not dated The father alleges that he had written to the mother asking for the interim parenting orders to be resumed as he believes she deliberately lied to the police and to the Court to obtain an ADVO using false allegations for the sole purpose of breaching the parenting orders. The father states that the mother refused, citing that she still feared for her safety and that of X, despite there being no grounds or basis for her to do so. The father states that the mother also replied that she would be making an urgent application to cease the interim parenting orders. Father’s Affidavit
20/02/2023
Page 3 [8]

AND

Exhibit MI-1-
3

File number(s):	SYC 2881 of 2020
Judgment of:	ALTOBELLI J
Date of judgment:	12 August 2024
Catchwords:	FAMILY LAW – PARENTING – Undefended hearing – Where the applicant did not attend the final hearing – Where the applicant’s informal application for adjournment was denied – Where final orders are made by consent – Where the Court is satisfied that the evidence supports the orders sought – Where the respondent makes an oral application for a passport order – Where the respondent makes an oral application for an injunction – Where the Independent Children’s Lawyer consents to the oral applications – Where leave is granted to make these oral applications – Where the respondent seeks indemnity costs – Where indemnity costs are granted – Where the Independent Children’s Lawyer seeks costs against both parties – Where the applicant is ordered to pay the entire costs of the Independent Children’s Lawyer.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 68B, 102NA, 117, 117(2A)
Cases cited:	Bhatt & Acharya (Costs) [2017] FamCAFC 71 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68 Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116 Lenova & Lenova (Costs) (2011) FLC 93-467; [2011] FamCAFC 141; Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Peake v Benedict (Costs) (2014) 53 Fam LR 476; [2014] FCCA 2723
Division:	Division 1 First Instance
Number of paragraphs:	28
Date of hearing:	12 August 2024
Place:	Sydney
Counsel for the Applicant:	Litigant in person (did not participate)
Counsel for the Respondent:	Ms Murphy (direct brief)
Counsel for the Independent Children's Lawyer:	Ms Reid
Solicitor for the Independent Children's Lawyer:	Ark Law Lawyers

SYC 2881 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR INGLIS Applicant
AND:	MS TORRES Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	12 AUGUST 2024

DATE	EVENT	SOURCE	PINPOINT
1975	Applicant father was born.	Mother’s Affidavit 15/07/2020	3
1975	Respondent mother was born.	Mother’s Affidavit 15/07/2020	2
2018	Parties commenced a relationship	Mother’s Affidavit 15/07/2020	4
2019	Father alleges prior, during and post X`s birth he regularly worked from home and was active in the care of X and supported the mother.	Father`s Affidavit 12/08/2020	59
2019	Child subject to the proceedings, X was born.	Mother’s Affidavit 15/07/2020	5
Domestic Violence / Abuse
Mid to late 2019	Mother alleges the father returned home intoxicated on several occasions and wake both her and X up between 2:00am – 4:00am	Mother’s Affidavit 15/07/2020	21
Father denies there is a culture of verbal abuse or excessive drinking. The father claims there has been no history of verbal or violent abuse as alleged by the mother	Father`s Affidavit 12/08/2020	122 & 124
Mid-2019	Mother alleges the father physically assaulted her while she was holding X.	Mother’s Affidavit 15/07/2020	19
Father denies this ever occurred.	Father`s Affidavit 12/08/2020
14/10/2019	Mother and father separated on a final basis. Since the separation the mother alleges X and her live alone in Suburb B at a property the mother jointly owns with her ex-husband.	Mother’s Affidavit 15/07/2020	6 & 11
In or about Oct 2019 – Jan 2020	The father alleges there was a sporadic contract in place which did not involve supervised contact.	Father`s Affidavit 12/08/2020	127
09/02/2020	Mother alleges the paternal grandmother has made no attempt to make contact with her or X since the separation beside from one email to the mother in order for her to collect her belongings.	Mother’s Affidavit 15/07/2020	28
Early 2020	Mother and father agreed for the father to see X. The mother alleges when they showed up to the fathers’ home, he was hungover. The mother also alleges she noticed the father did not have essential items needed for the care of X such as a change-table and nappies. The mother also alleges the father forcefully pushed her when she attempted to leave the fathers home. The mother ended up contacting the police consequently the father gave X back to the mother. The mother made a police report at the police station. Following this incident, the mother allegedly ceased all correspondence with the father. The father alleges he has not been interviewed by the police over this incident. The father claims he has not conducted himself in a manner that would justify the mother obtaining an AVO against him.	Mother’s Affidavit 15/07/2020 Father`s Affidavit 12/08/2020	36 & 40 & 42- 44 119-120
09/02/2020 & 12/02/2020	Mother alleges the father sent intimidating and harassing text messages to her.	Mother’s Affidavit 15/07/2020	45
Risk of Harm towards the Child/Violence
Mid-2022	The Father states that the mother alleges that he grabbed her phone at a handover in mid-2022 (post the last hearing on Monday 6th June 2022 before Justice Monahan). He was arrested on one count of DV, based on the phone recording. The father alleges there had been no DV incidents between him and the mother prior and Justice Monahan noted this in his 6th June 2022 orders. The mother had also terminated the contact on the Thursday 9th June 2022 prior to the incident. The father denies these allegations and states that the mother was filming the entire handover and making X deliberately upset. The father denies grabbing the mother’s phone. He states that he waited in the car patiently for approximately 15 minutes for the mother to affect the handover	Father’s Affidavit 14/11/2022	Page 3 [9], [10], [13]
Not dated	The mother alleges that there is a risk of harm to X in the unsupervised care of the father to the father’s alcohol and drug abuse. Mother also states that DCJ indicated assessed issues and concerns of substance abuse and domestic violence on several dates and each report noted several risks of harm towards X. And, also states that the DCJ reports noted one of the father’s Children, D, disclosing how the father drinks, regularly hits him in the back of the head and legs and seeing drugs in his home.	Mother’s Affidavit 10/08/2023	Pages 3-4 [7-13]
Jan 2022 – Jun 2022	The mother alleges that the father made numerous excuses not to see X since January 2022 – June 2022 and that the father cancelling contact became more frequent with time. When the mother did cancel contact for the father it was for genuine reasons when she and X had COVID	Mother’s Affidavit Sealed at 05/08/2024	Page 25-27 [107 (j-z) - 108] Annexures Marked “X” to “AE”
Mid-2022	The mother alleges that the father assaulted her during handover. X was clutched onto the mother crying and refused to let her go. The father got out of the car and grabbed X out of the mother’s arms while he cried hysterically and the father forcefully put X into the child restraint seat. The mother began to video record what was occurring. When the father noticed the mother holding her mobile phone, he grabbed and pushed her causing her to fall and tried to take the phone from her. He then got back into his car and drive away while X cried and screaming inside the car. The mother noticed the father’s daughter E smirking and laughing at the incident. The mother went back inside the house and called the Police who took a DVEC statement and later charged the father and an ADVO was made.	Mother’s Affidavit Sealed at 05/08/2024	110] – [117] AND Annexure marked “AF” (a copy of the ADVO)
Early 2023	The mother alleges that the father was found not guilty of the charges towards the mother however the Police Constable that took carriage of the matter was not present in Court that day and the mother was not told to attend Court to give evidence.	Mother’s Affidavit Sealed at 05/08/2024	Page 29 -30 [120-124] AND Annexures marked “AG” – “AH”
16 Feb 2023	The mother sent the father an email that she would not be attending contact nor did she want him attending her home. The father replied via email that same day stating “I have no intention of going anywhere near you or your property”.	Mother’s Affidavit Sealed at 05/08/2024	Page 30 [127] AND Annexure marked “AK” (a copy of the email correspondence)
Father’s Behaviour During Contact
Not dated	The mother alleges that on occasions, during contact with X, she has witnessed the father consume alcohol; a bottle of wine, and that this has been a regular occurrence. The mother also alleges that the father elects to sit in a café or restaurant or do his grocery shopping at Coles instead of using the indoor and outdoor play area for children to spend time with X.	Mother’s Affidavit Sealed at 05/08/2024	Page 34 [144-145]
Not dated	The mother alleges that on more than one occasion during the father having contact with X, there have been incidents of abuse and violence between the father and his new partner in the presence of X and the mother.	Mother’s Affidavit Sealed at 05/08/2024	Page 34-35 [146-148]
23 Feb 2023	The mother alleges that she filed an Application in a Proceeding to amend the existing orders in place.	Mother’s Affidavit Sealed at 05/08/2024	Page 31 [130]
28 Feb 2023	The mother alleges that the father filed a contravention order.	Mother’s Affidavit Sealed at 05/08/2024	Page 31 [129]
Sept 2023 – Oct 2023	The mother alleges that the father cancelled contact on multiple occasions.	Mother’s Affidavit Sealed at 05/08/2024	Page 36 [154-159] AND Annexures Marked “AR” to “AV”
12 Oct 2023	The mother alleges that during contact, X wasn’t feeling well and during contact, called her on his watch phone begging her to pick him up and asking her “Mummy, why did you leave me?” When she arrived to pick him up, she saw him asleep on the table at McDonalds and started to cry when he woke up. The father was working on his laptop. X said to his mother “Mummy I don’t want to go with [Mr Inglis], why did you make me go?”	Mother’s Affidavit Sealed at 05/08/2024	Page 37 [160]
Oct 2023 – Dec 2023	The mother alleges that the father resumed cancelling/postponing contact with X using his work as an excuse and communicated this via SMS.	Mother’s Affidavit Sealed at 05/08/2024	Page 37 – 38 [161-169] AND Annexures Marked “AW” to “BA”
Parent’s Concerns
Not dated	The mother alleges that she notices X being distressed and anxious at handovers and not being comfortable whilst in his father’s presence which has been an ongoing concern. The Family Report by Ms F dated 2 March 2022 noted these observations and how the father simply does not engage with X. The report also noted that X is an at unacceptable risk of harm with the father due to lack of boundaries with respect to his behaviour, treatment of partners and consumption of alcohol.	Mother’s Affidavit 10/08/2023	Page 7 [24-25]
Not dated	The mother alleges that the father has never sent a card or a present to X for his birthday or any other festive occasions such as Easter or Christmas and has very little connection with the X; he never engages with him during contact not even since X was born and continues to not engage with him and is always on his laptop during contact. The mother states that X sees his father as a stranger and refers to him by his first name instead of Dad.	Page 38 [170-172]
Not dated	The mother alleges that X remains distressed, anxious and reluctant to go on contact visits whereby the mother would have to encourage him to go. X would tell his mother words to the effect of “Mummy, is it [Mr Inglis] day today? I don’t want to go?”	Mother’s Affidavit Sealed at 05/08/2024	Page 39 [174]
Not dated	The father alleges that he had written to the mother asking for the interim parenting orders to be resumed as he believes she deliberately lied to the police and to the Court to obtain an ADVO using false allegations for the sole purpose of breaching the parenting orders. The father states that the mother refused, citing that she still feared for her safety and that of X, despite there being no grounds or basis for her to do so. The father states that the mother also replied that she would be making an urgent application to cease the interim parenting orders.	Father’s Affidavit 20/02/2023	Page 3 [8] AND Exhibit MI-1- 3