Manuel & Pinner (No 3)
[2022] FedCFamC2F 1235
Federal Circuit and Family Court of Australia
(DIVISION 2)
Manuel & Pinner (No 3) [2022] FedCFamC2F 1235
File number(s): CAC 1658 of 2013 Judgment of: JUDGE W J NEVILLE Date of judgment: 13 September 2022 Catchwords: FAMILY LAW – Parenting – child has a good and close relationship with both parents – long history of difficult co-parenting relationship which is not assisted by the Father’s protests against the Family Law Act and his obsessive complaints about “the family law system” in Australia and world-wide – where the Father’s abusive behaviour towards the Mother, the Court, the ICL, experts generally and Child Court Experts and practitioners is of extreme concern – long running litigation where Father has filed multiple contraventions against the Mother and sought substantive parenting Orders in circumstances where parents have previously had a shared-care arrangement - Orders for sole parental responsibility, child to live with the Mother and spend limited time with the Father – Mother’s Application for Father to be declared a vexatious litigant dismissed. Legislation: Family Law Act1975 (Cth), ss 60CC, 61DA, 102NA, 114, 117, Part VII
Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 140
Cases cited: AMS v AIF (1999) 199 CLR 160
Beckert v Beckert (2022) 64 Fam LR 218
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collu & Rinaldo [2010] FamCAFC 53
Fielding v Mason (No.2) [2001] FamCA 350
Fox v Percy (2003) 214 CLR 118
Godfrey v Sanders (2007) 208 FLR 287Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Hsiao v Fazarri (2020) 94 ALJR 961; (2020) 383 ALR 446; (2020) 61 Fam LR 465
Jones v Dunkel (1959) 101 CLR 298
In the Marriage of Kress (1976) 13 ALR 309
M v S (2008) 37 Fam LR 32
McCall v Clark (2009) 41 Fam LR 483
Manuel & Pinner [2021] FedCFamC2F 468
Manuel & Pinner (No 2) [2022] FedCFamC2F 640
Mazorski v Albright (2007) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
Pencious & Searle (2017) FLC 93-805
Sigley v Evor (2011) 44 Fam LR 439
Stephens v Stephens (2011) 44 Fam LR 117
U v U (2002) 211 CLR 238
Vontek v Vontek [2017] FamCAFC 28
Shorter Oxford English Dictionary (Fifth Edition, 2002)
Macquarie Dictionary (Seventh Edition, 2017)
Division: Division 2 Family Law Number of paragraphs: 250 Date of last submission/s: 18 August 2022 Date of Hearing 25 & 26 May 2022 Place: Canberra Solicitor for the Applicant Self-represented Counsel for the Respondent Ms R Curran Solicitor for the Respondent Farrar Gesini Dunn Independent Children’s Lawyer Mr Robinson ORDERS
CAC 1658 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MANUEL
ApplicantAND: MS PINNER
RespondentINDEPENDENT CHILDREN’S LAWYER
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
13 September 2022
THE COURT NOTES THAT:
A.Because of the Father’s hostile conduct towards the Court, Counsel for the Mother, the solicitor for the Mother and the present and former Independent Children’s Lawyer, prior and during the trial, together with his offensive submissions, a copy of these Orders and reasons will be provided to the Marshal of the Court; and
B.In view of the many adverse findings against the Father in the principal judgment, if any further Application is filed by either party, it will be heard by a Judge of the Court other than Judge W J Neville; accordingly,
ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:
1.The parents do all acts and things so as to facilitate the issue of New Zealand citizenship to X, born in 2010 (‘X’).
THE COURT FURTHER ORDERS THAT:
2.All previous Orders in relation to X be discharged.
Parental responsibility
3.The Mother have sole parental responsibility for X.
Living arrangements
4.X live with the Mother.
5.Each of the parents take all reasonable steps to ensure that X spends time with his Father in 2022 and each alternate year thereafter as follows:
(a)During school terms:
(i)From after school (or 3:00pm if X does not attend school that day) on the Friday that falls at the conclusion of weeks 1, 3, 5, 7 and 9 of the school term until before school (or 9:00am if X does not attend school that day) on the following Monday; and
(b)During the school holiday periods at the conclusion of terms 1, 2 and 3:
(i)From 9:00am on the first Monday of the holiday period until 9:00am on the following Monday;
(c)During the school holiday period commencing at the conclusion of term 4:
(i)From 9:00am on the first Monday of the holiday period until 9:00am the following Monday;
(ii)From 9:00am on the third Monday of the holiday period until 9:00am on the fifth Monday of the holiday period.
6.Each of the parents take all reasonable steps to ensure that X spends time with his Father in 2023 and each alternate year thereafter as follows:
(a)During school terms:
(i)From after school (or 3:00pm if X does not attend school that day) on the Friday that falls at the conclusion of weeks 2, 4, 6, 8 and 10 of the school term until before school (or 9:00am if X does not attend school that day) on the following Monday; and
(b)During the school holiday periods at the conclusion of terms 1, 2 and 3:
(i)From 9:00am on the second Monday of the holiday period until before school (or 9:00am if X does not attend school that day) on the following Monday;
(c)During the school holiday period commencing at the conclusion of term 4:
(i)From 9:00am on the second Monday of the holiday period until 9:00am on the fourth Monday of the holiday period;
(ii)From 9:00am on the sixth Monday of the holiday period until before school (or 9:00am if X does not attend school that day) on the following Monday.
Telephone communication
7.Each of the parents take all reasonable steps to ensure that X communicates with the Father each Wednesday, with the Father to initiate the call at 7:00pm.
8.Each of the parents take all reasonable steps to ensure that X communicates:
(a)with his Mother each Saturday that he is in the Father’s care, with the Mother to initiate the call at 7:00pm; and
(b)at any other time as sought/requested by X to either parent.
Christmas
9.Each of the parents take all reasonable steps to ensure that X spends time with his parents at Christmas time as follows:
(a)In 2022 and each alternate year thereafter:
(i)From 4:00pm on Christmas Eve until 4:00pm on Christmas Day with his Father;
(ii)From 4:00pm on Christmas Day until 4:00pm on Boxing Day with his Mother;
(b)In 2023 and each alternate year thereafter:
(i)From 4:00pm on Christmas Eve until 4:00pm on Christmas Day with his Mother;
(ii)From 4:00pm on Christmas Day until 4:00pm on Boxing Day with his Father.
Special occasions
10.Notwithstanding these Orders, and unless otherwise agreed in writing between the parents:
(a)X live with his Mother from 9:00am each Mother’s Day until before school (or 9:00am if X does not attend school that day) the following day;
(b)X live with his Father from 9:00am each Father’s Day until before school (or 9:00am if X does not attend school that day) the following day;
(c)On X’s birthday each year, the parent with whom he is living make him available to spend time with the other parent from after school (or 4:00pm if X does not attend school that day) until 8:00pm;
(d)If the Mother’s birthday or the Father’s birthday falls on a day when X is living with the parent not having the birthday, the parent with whom X is living make him available to spend time with the other parent from after school (or 9:00am if X does not attend school that day) until 8:00pm;
(e)On the birthday of any of X’s siblings, the parent with whom X is living shall facilitate X spending time with the sibling’s family on the sibling’s birthday from after school (or 9:00am if X does not attend school that day) until 8:00pm.
Changeover
11.For the purposes of these Orders:
(a)Changeover is to occur at X’s school if the changeover coincides with a time X is at school; and
(b)Changeover at all other times is to occur by the parent with whom X is about to commence living collecting him from the other parent’s residence.
Travel
12.In the event that either parent proposes to travel interstate overnight with X, the travelling parent shall advise the other parent of their intended travel at least 24 hours prior to leaving.
13.The parents do all things necessary to facilitate the issue of a passport for X, and facilitate the renewal of the passport prior to the passport expiring, at their joint cost.
14.Unless otherwise agreed in writing between the parents, the parents be permitted to take or send X to any country outside the Commonwealth of Australia where there is a “Level 1” advice level in place as issued by the Australian Government Department of Foreign Affairs and Trade, provided that:
(a)The travel dates fall within X’s time with the parent proposing the travel pursuant to these Orders;
(b)The parent proposing the travel advises the other parent of their intended travel, including location/s and dates, at least 60 days prior to the date of travel; and
(c)The parent proposing the travel provides the other parent with copies of X’s flight details at least 21 days prior to travel.
Sharing of information
15.Each parent keep the other informed of their current resident address, mobile telephone number and email address, and advise the other of any change thereto within 7 days of any change.
16.Each parent notify the other as soon as practicable of the following:
(a)X seriously injuring himself, or falling seriously ill;
(b)X requiring urgent medical treatment by a medical practitioner and/or ambulance crew; and
(c)X being admitted to hospital.
17.The Mother, within 14 days of the date of these Orders, authorise X’s school to provide the Father with copies of all school reports, any other reports on school progress and behavioural issues, and all school circulars in relation to X.
X’s counsellor
18.The Mother do all things necessary to ensure that X attends upon a counsellor or psychologist (X’s counsellor) as needed, or as recommended by X’s counsellor.
19.The Mother request that X’s counsellor speak to both parents about X’s emotional needs, and provide strategies to the parents for supporting X.
20.The Mother request that X’s counsellor provide family counselling to X and the Father to improve X’s confidence in sharing his emotions, opinions and wishes with his Father.
The Father’s psychologist
21.The Father attend upon a psychologist (the Father’s psychologist) for the purposes of exploring his patterns of emotional regulation and conflict management.
22.Prior to any appointment with the Father’s psychologist, the Father provide to the Father’s psychologist a copy of the Family Report dated 16 May 2022.
Parenting Program
23.The parents participate in a parenting adolescents program, such as the ‘Tuning into Teens’ program.
Restraints
24.Each of the parents, their servants and agents, be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, their family or their partner to, or in front of, X; and
(b)Discussing these proceedings or the contents of any documents filed, or intended for use, in these proceedings to, with, or in the presence or hearing of, X, other than for the purposes of explaining the effect of these Orders to him.
25.The Father be, and is hereby, restrained by injunction from contacting or attending X’s school without the Mother’s written consent.
26.The Father be, and is hereby, restrained from attending any of X’s sporting, extracurricular or social events during X’s time with his Mother pursuant to these Orders, without the Mother’s written consent.
Costs
27.Within 60 days of the date of these Orders, the Applicant must pay the costs of the Respondent, in relation to the Application in a Case filed 6 August 2021, fixed in the sum of $4,500.00.
28.Within 60 days of the date of these Orders, the Applicant must pay the costs of the previous Independent Children’s Lawyer, H Legal, in relation to the Application in a Case filed 6 August 2021, fixed in the sum of $4,000.00.
29.Within 60 days of the date of these Orders, the Applicant must pay the costs of the Respondent in relation to the Application in a Proceeding filed 11 April 2022 fixed in the sum of $4,200.00.
30.Within 90 days of the date of these Orders, the Applicant must pay the costs of the Respondent in relation to the Contravention Applications set out in the principal judgment fixed in the sum of $42,000.00.
Other
31.Both parties be restrained from filing any further Application without prior leave of the Court.
32.Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
33.Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), 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 the Fact Sheet, attached hereto and these particulars are included in these orders.
34.All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
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 Manuel & Pinner (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
Most family law litigation is difficult and invariably has significant elements of sadness, malaises of one kind or another, and all manner of other human emotions as parents especially literally battle out past frustrations and ongoing hurts of varying degrees of intensity. Regrettably, sadness and bitterness pervaded so much of the current matter, especially in recent years. As the lengthy reasons that follow make plain, it need not have been so fraught for all involved.
Formally, this long-running matter, which has been on foot (on and off) since 2013, concerns the Court making Orders that it considers to be in the best interests of 12 year old X. There is no doubt that both of his parents love him very much, and that X has a good and close relationship with both parents.
Regrettably, after many years of civil and usually helpful engagement, the Father’s conduct during the trial, and on a number of occasions at Court events leading up to it, deteriorated alarmingly. In many respects, the Father used the Court process as his personal “soap-box” to grandstand for a range of “causes” he espouses, or prejudices he champions. He ranted and raved about a wide variety of things, albeit with usually common themes, sometimes with greater passion and understandable grief, starting with the separation of his own parents in New Zealand.[1] This separation of his parents and what followed in his life, doubtless understandably but with no relevant detail, has strongly and bitterly coloured everything else since and this proceeding in particular.
[1] I should note that the Court earlier made an Order in the Father’s favour under s.102NA of the Family Law Act 1975 (Cth). Counsel appeared on the Father’s behalf at the outset of the trial. Counsel confirmed that he was unable to get instructions from the Father and therefore he sought leave to withdraw. Leave was granted. In an inauspicious start to the final hearing, Counsel also indicated that if the Court wished the lawyers (Counsel and instructor) to remain in the matter, “it would be under duress.” See Transcript (25th May 2022) p.2. This was but the last occasion when the Father had dismissed lawyers under s.102NA. Hereafter, references to the Transcript will be simply “T” followed by the page number.
His voluble, histrionic, regrettably sometimes puerile, and regularly offensive, protestations assisted him not a jot. For an obviously intelligent person, he railed against any and every slight, real or imagined, that stemmed (in his view) ultimately from what he described as (a) the completely broken family law system in the western world (frequently he voiced the view that the family law systems in the US, Canada, New Zealand, the United Kingdom and Australia were all broken); (b) the failures in the family law system in Australia all stemmed from the original Family Law Act in 1975 (“the Act”); and (c) this failed system privileged women and prejudiced men. It was, he declared, a “gendered system”. It was, and is, unclear, what authority or education he has to be an expert on any family law system, let alone an international expert on same, other than his own bitter, albeit limited, experience of it and those of similar mind and experience. His various speeches and protests regularly were also largely reduced to very basic descriptions; references to “penis” and “vagina” were regular, scornful short-hand expressions, given as reasons, for his plight and the plight of all men who have been, or are currently, caught (like Frodo imprisoned in Shelob’s lair) in what he sees as the dark and destructive web of lies, deceit and connivance of the law, courts, lawyers and women.
Curiously, for someone who clearly and dramatically despises the family law system, he tends to use it quite a lot. He regularly claimed to be a “fact-based” person. Regrettably, facts that made clear the significant and various flaws in his so-called arguments or theories were simply cast aside as irrelevant or as statements of prejudice.
In a recent judgment, the Full Court did not disturb a trial Judge’s lamentable experience of the Father’s conduct in that case, and her findings that often during the trial he was “unresponsive”, his conduct “was a deliberate frustration of the trial itself”, and that his behaviour became “increasingly sarcastic, obnoxious and belligerent.”[2] Much of what was described and traversed in that unsuccessful appeal, and what was experienced by the trial Judge there, regrettably applies here – mutatis mutandis.
[2] Beckert v Beckert (2022) 64 Fam LR 218 at [26], [46] and [77].
Canvassed in more detail below, during the trial the Father (a) refused to stand when directed at the opening and closing of the Court, (b) refused to address the Bench properly (reference to standard judicial titles were rejected out of hand as another form of protest against “the family law system”), (c) was openly hostile and abusive to the Mother’s [female] Counsel and to the Bench, (d) was openly hostile and abusive to the Mother’s lawyer, Ms K, verbally and in writing (as he had been largely throughout the litigation) and (e) regularly refused to answer questions asked either by Counsel for the Mother or by the Bench. On so many fronts, this was a useless, quite infantile and completely ill-informed course and performance. He claimed that only he “had the balls” to stand up to the broken family law system. Among many other things, (i) his claim to rely on the Privacy Act as a basis for refusing to answer certain questions was erroneous and facile, and (ii) any claims, or more likely complaints, about the Court, the family law system, and any related matters, do not, and cannot, withstand the slightest scrutiny. He was given every opportunity to make his case but either destroyed it himself, and/or his refusal to answer deprived himself of providing information to the Court, presumably that would have (or may have) assisted his case. His petulant obduracy assisted no one – except the Mother, who regularly and consistently refused to use the Father’s anger and obstructive behaviour as a weapon against him, subject of course to his conduct as a relevant consideration under Part VII of the Act. Sadly, it did not assist X one iota.
Often he claimed (always in the most general terms) to be X’s defender against “the family law system”, but unfortunately his actions and conduct did nothing to assist X at all. It was rarely clear what it was that the family law system did to oppress X such that he needed to be defended from it. As a role model, the Father was outrageous and never to be emulated. Indeed, and very sadly, the Father failed X in every respect by his appalling conduct. Further, and quite strangely, for all of his mindless and thoughtless ranting against “the system”, X in fact has a good and close relationship with both of his parents. Miraculously, the parents have largely shielded him from their increasingly caustic relationship. But with every passing day and the Father’s increasingly bitter and erratic behaviour, the risks for X grow significantly.
What was perhaps most concerning, if not bordering on the bizarre, was how any person of reasonable intelligence would think that behaving badly (particularly in a Court) – being obnoxious, abusive, not answering questions, and the like – could, in any way, advance one’s cause or interests. Yet this is exactly the course that the Father, obviously consciously and deliberately, chose. The only explanation, but not justification, was that he considered his “fate” to be effectively doomed because he was being dealt the worst possible hand by the failed family law system, and his gender of course was always against him, things could not get any worse because of his conduct. Because he often chose to ignore, and/or refuse, to answer certain questions, a significant part of this general assessment is largely an assumption.
It would, of course, be almost folly to canvass, let alone attempt to analyse, the wide range of ultimately fruitless, antagonistic and offensive conduct of the Father during these proceedings. There is time enough to do so when addressing his evidence below. The primary focus must remain on X.
As already observed, the parents have an alarmingly difficult and fractious relationship. At least in this respect each parent agrees, each blaming the other for the incapacity to agree on a great many things over many years. The Father’s belligerence and relentless pursuit of anything and everything that he thinks is in X’s best interests, and his utterly rude treatment and general disregard of the Mother’s partner (Ms S – invariably referred to by the Father simply and scornfully as “that person”) and their son T (obviously X’s half sibling), is appalling. The co-parenting relationship may be characterised as the Mother trying her best to accommodate, and/or to withstand the Father’s single-minded pursuit, not infrequently to the point of hostility, of what he thinks is best for X. All of this must be (and the Mother’s evidence confirmed it) exhausting and angst-inducing, which is ultimately debilitating. Put more simply, the co-parenting relationship is fraught in the extreme. The agreement of the parents of the completely fractured co-parenting relationship, and the abundant evidence of it, readily negatives any presumption of equal shared parental responsibility under s.61DA. Each parent seeks an Order for sole parental responsibility, if any more be needed to show the deeply set problems between them. As X’s interests increasingly diverge from those of his Father, as they are inevitably, increasingly but somewhat delicately doing as he moves into his teenage years, the tensions between the parents will very likely only increase.
In so many ways, the tragedy of this matter is less about the Father’s egregious and unrestrained conduct. Rather, it is more about how the Father takes no responsibility for his actions; it is always the fault of others – the Mother, her partner, the Court, “the system” (however defined). But nobody, and no system, has forced him to be rude, to be insulting, or to be offensive. He chose to be offensive and insulting to Counsel for the Mother; he chose to be offensive to the Mother’s solicitor (over many years); he chose to be offensive to my Associate – a more respectful, gracious and solicitous person one would be hard-pressed to find. Doubtless their “gender” was a significant, and significantly inflammatory, factor for the Father. He was offensive in the extreme to X’s counsellor, Mr U. He chose each of these courses; he chooses to act this way. He is not, and was not, forced to do so. His claim was/is that if someone keeps doing the wrong thing, or not providing information to him as promised, he is entitled to become frustrated, which translates (for him) into self-justifying, boorish and offensive behaviour. Frustration is one thing; downright rudeness and being utterly offensive is quite another.
The Father’s regularly unrestrained actions reflect badly, indeed very poorly, on him. They lead the Court to conclude that there is an ongoing risk that if he continues along these extremely angry, antagonistic and offensive paths, there must be some risk that such dysregulated conduct will, or could, erupt in front of X. He says that he does not act this way when X is with him. Nor does he act or speak (he says) as he did, or express his venom about certain women, and the Court, when X is with him. However, surely he does not wish the Court to consider him to be something of a Jekyll and Hyde character, who with X is the kind, engaging and fun Dr Jekyll, but in Court and in dealing with X’s Mother (or anyone else who frustrates him), is the unrestrained, almost gothic, brooding and insulting Mr Hyde. I feel a certain sorrow for the Father in his apparent compulsion to act so constantly angry and aggrieved, perhaps with a modicum of justification. But he chose not to answer questions about relevant matters. It was his choice when he had the opportunity. He chose not to take it. Many others through history, of course, have suffered the most appalling atrocities but have chosen more benign, respectful and peaceful paths. It was and is his loss; it was and is X’s loss.
The Father will take no responsibility for the outcome of the Court process because he will blithely and irresponsibly blame everything on “the system”, or the Mother, or anyone else, except himself. He is the victim, “persecuted” by the system and by others. He had his equal opportunity, as did the Mother, to participate in the final hearing; regularly he chose not to answer questions. He blames the Court, as part of “the system”, for multiple failings in not taking action, or not relying or acting upon what he said was “all the evidence” (he invariably speaks in hyperbole) he has provided over the years. But when everyone got to the final hearing where all evidence and claims could finally be tested, he chose not to assist the Court. He chose the path of generalised declarations and slogans of bias, gender discrimination, and insult. In so choosing, he let X down.
For the reasons that follow, the Orders sought by the Mother, in my view, are in X’s best interests.
Orders sought by the Applicant
The Applicant Father’s Orders sought were contained in the Amended Application for Final Orders filed 4 May 2022; they were as follows (emphasis in original):
1.That the following previous Orders be discharged:a.24 March 2017 (amended)b.12 July 2017 (amended)c.15 March 20182.That all previous Orders be discharged.
Parental Responsibility
3.That the mother and father have equal shared parental responsibility for the child, [X], born [in] 2010 (“the child”).4.That the father have sole parental responsibility for the child, [X], born in 2010 (“the child”).
Care Arrangements
5.That the child live with the mother and father on a week about basis, with changeover to occur after school or 4:00pm each Monday.
6.That, notwithstanding these Orders, unless otherwise agreed in writing between the parties:
a.The child shall spend time with the mother from 9:00am on Mother’s Day until after school or 4:00pm the following day;
b.The child shall spend time with the father from 9:00am on Father’s Day until after school or 4:00pm the following day;
c.The child’s birthday, on which the parent with whom the child is living shall facilitate the child spending time with the other parent from after school (or 4:00pm if a non-school day) until 8:00pm;
d.The parent with whom the child is living shall facilitate the child spending time with the sibling’s family on the sibling’s birthday from after school (or 4:00pm if a non-school day) until 8:00pm;
e.That on each of the parent’s birthdays, if the birthday parent does not have care of the child on their birthday, the non-birthday parent shall facilitate time between the child and the birthday parent from after school (or 4:00pm if a non-school day) until 7:00pm.
7.That, for the purposes of these Orders:
a.Changeover is to occur at the child’s school on the days that he is attending there; and
b.Changeover at all other times is to occur by the parent with whom the child is about to commence living with collecting the child from the other parent’s residence.
8.Absent any agreement between the parties in writing, the child spend time with his parents at Christmas as follows:
a.In 2018 and each alternate year thereafter;
i.From 4:00pm Christmas Eve until 4:00pm Christmas day with his Father;
ii.From 4:00pm Christmas Day until 4:00pm Boxing Day with his Mother.
b.In 2019 and each alternate year thereafter;
i.From 4:00pmm Christmas Eve until 4:00pm Christmas Day with his Mother;
ii.From 4:00pm Christmas Day until 4:00pm Boxing Day with his Father.
9.The child is to have a single general practitioner being [V Medical Centre, W Street, Suburb V], ACT and;
a.The primary general practitioner is to be [Dr Y];
b.If [Dr Y] is unavailable then the child can be seen by [Dr Z] or [Dr AB] or;
i.In the event that all of those doctors are unavailable then the child can be taken to another doctor with the details to be provided to the other parent within 24 hours;
c.In the event that these doctors cease their practice then the father shall choose a new general practitioner for the child;
10.That the child attends [C School] and that neither parent shall change that enrolment unless otherwise agreed in writing.
11.That the child will attend [C School] from 2022 and that;a.Both parents will do all acts and things so as to facilitate the enrolment;b.Neither parent shall change that enrolment unless otherwise agreed in writing.12.That the child will attend [C School] from 2022.
13.That the child will attend [Region AC School] from 2026.
14.If for any reason the parent with whom the child is residing is unable to care for the child overnight, the child shall remain in that parent’s residence to be cared for overnight by that parent’s partner.
15.If for any reason the resident parent’s partner is unable to care for the child overnight, the other parent shall be given the first option for the child in their absence for that overnight only.
Travel
16.That in the event that either parent proposes to travel interstate overnight with the child, the travelling parent shall provide a minimum of 24 hours’ notice to the other parent.
17.That the parents do all acts and things so as to facilitate the issue of a passport for the child and facilitate the renewal thereof.
18.That the parents do all acts and things so as to facilitate the issue of New Zealand citizenship to the child.
19.That each parent be permitted to travel internationally with the child provided that the travelling parent provides to the other parent, 30 days prior to their intended travel (or 7 days prior if travelling to New Zealand and the travel does not impact on the child’s time with the other parent), the following:
a.All accommodation details;
b.Details of flights and other travel arrangements;
c.Contact details for the child whilst the child is away; and
d.A proposal for makeup time (if applicable).
20.That each parent be permitted to have a period of 14 consecutive days during the summer school holidays for an extended holiday;
a.The parent wanting to take such an extended holiday is to give at least 2 months notice to the other parent.
b.Each parent facilitate this by suspending the normal week about care arrangement to allow this holiday; and
i.The child have 2 weeks with each parent to ensure equal time.
21.That the child be able to attend the [Event B] event in 2021 and every alternate year with his father and;a.The mother facilitates swapping up to 4 days/nights to allow this to occur.22.That the child be able to attend the [Event B] event in 2022 and every alternate year with his father and;
a.The mother facilitates swapping up to 4 days/nights to allow this to occur.
23.That the child be able to attend the [AD Concert] [in] 2022 with his father and;
a.The mother facilitates swapping up to 4 days/nights to allow this to occur. If the event is rescheduled then the mother will facilitate swapping of the new dates.
Communication
24.The child is to have telephone communication with the non-resident parent each Tuesday, Wednesday and Sunday at 6:00pm with the non-resident parent to initiate the call;
a.Or at any other time that the child expresses a wish to do so.’
25.The child is to have his own mobile phone that:
a.Is supplied by the father;
b.The monthly cost for the phone account will be paid for by the father with the mother to reimburse the father 50% on the 1st of every month;
c.The parents are to ensure that the phone is charged at all times; and
d.The parents are to ensure that the phone is turned on when phone calls are to take place at scheduled times and accessible by the child at all times within 8:00am and 8:00pm.
26.That each parent is to email the other parent before 8:00pm on the Monday after the child has spent the week with them and include, but not limited to:
a.General update on the child’s week
b.Details on any upcoming events
c.Details on any illnesses
27.That each parent keep the other informed of their current residential address, mobile and/or landline telephone numbers and email address, and advise the other parent of any change thereto within 7 days of such change.
28.That each of the parties, their servants and agents be hereby restrained by injunction from:
a.Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party, their family or their partner to, or in front of, the child; and
b.Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with, or in the presence of hearing of, the child and from permitting any other person to do so.
29.That both parents be permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
30.That each party is at liberty to attend at the child’s school for the purposes of any function or activity normally attended by parents.
31.That in the event of childhood illness or emergency the parent with whom the child is living with shall contact the other parent forthwith to inform them.
32.That each party shall keep the other informed of:
a.The name and contact details for each of the children’s doctors, health care and other treatment providers; and
b.Any medical condition, significant illness, medical emergency or other significant health condition suffered by the child, and each parent shall comply with all directions and advice from treating medical professionals.
33.That pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
34.The parents agree to review these orders upon there being a significant change in the child’s circumstances.
35.The parents intend to participate in dispute resolution in the event a disagreement arises in relation to these orders.
36.Neither parent shall relocate with the child from the Canberra region unless agreed in writing.
NOTATION
A. It is noted that the father intends to travel with the child in alternate years in January to New Zealand to allow the child to spend time with his paternal family.
Orders sought by the Respondent
The Respondent Mother’s Orders sought were contained in the Case Summary Document filed 18th May 2022; they were as follows (emphasis in original):
Previous Orders
1.That all previous Orders in relation to the child, [X], born [in] 2010 ([X]), are hereby discharged.
Parental responsibility
2.That the mother have sole parental responsibility for [X].
Living arrangements
3.That [X] live with his mother.
4.That each of the parents take all reasonable steps to ensure that [X] spends time with his father in 2022 and each alternate year thereafter as follows:
a.During school terms:
i.From after school (or 3:00pm if [X] does not attend school that day) on the Friday that falls at the conclusion of weeks 1, 3, 5, 7 and 9 of the school term until before school (or 9:00am if [X] does not attend school that day) on the following Monday; and
b.During the school holiday periods at the conclusion of terms 1, 2 and 3:
i.From 9:00am on the first Monday of the holiday period until 9:00am on the following Monday;
c.During the school holiday period commencing at the conclusion of term 4:
i.From 9:00am on the first Monday of the holiday period until 9:00am the following Monday;
ii.From 9:00am on the third Monday of the holiday period until 9:00am on the fifth Monday of the holiday period.
5.That each of the parents take all reasonable steps to ensure that [X] spends time with his father in 2023 and each alternate year thereafter as follows:
a.During school terms:
i.From after school (or 3:00pm if [X] does not attend school that day) on the Friday that falls at the conclusion of weeks 2, 4, 6, 8 and 10 of the school term until before school (or 9:00am if [X] does not attend school that day) on the following Monday; and
b.During the school holiday periods at the conclusion of terms 1, 2 and 3:
i.From 9:00am on the second Monday of the holiday period until before school (or 9:00am if [X] does not attend school that day) on the following Monday;
c.During the school holiday period commencing at the conclusion of term 4:
i.From 9:00am on the second Monday of the holiday period until 9:00am on the fourth Monday of the holiday period;
ii.From 9:00am on the sixth Monday of the holiday period until before school (or 9:00am if [X] does not attend school that day) on the following Monday.
Telephone communication
6.That each of the parents take all reasonable steps to ensure that [X] communicates with this father each Wednesday, with the father to initiate the call at 7:00pm.
7.That each of the parents take all reasonable steps to ensure that [X] communicates with his mother each Saturday that he is in the father’s care, with the mother to initiate the call at 7:00pm.
Christmas
8.That each of the parents take all reasonable steps to ensure that [X] spends time with his parents at Christmas time as follows:
a.In 2022 and each alternate year thereafter:
i.From 4:00pm on Christmas Eve until 4:00pm on Christmas Day with his father;
ii.From 4:00pm on Christmas Day until 4:00pm on Boxing Day with his mother;
b.In 2023 and each alternate year thereafter:
i.From 4:00pm on Christmas Eve until 4:00pm on Christmas Day with his mother;
ii.From 4:00pm on Christmas Day until 4:00pm on Boxing Day with his father.
Special occasions
9.That, notwithstanding these Orders, and unless otherwise agreed in writing between the parents:
a.[X] live with his mother from 9:00am each Mother’s Day until before school (or 9:00am if [X] does not attend school that day) the following day;
b.[X] live with his father from 9:00am each Father’s Day until before school (or 9:00am if [X] does not attend school that day) the following day;
c.On [X]’s birthday each year, the parent with whom he is living make him available to spend time with the other parent from after school (or 4:00pm if [X] does not attend school that day) until 8:00pm;
d.If the mother’s birthday or the father’s birthday falls on a day when [X] is living with the parent not having the birthday, the parent with whom [X] is living make him available to spend time with the other parent from after school (or 9:00am if [X] does not attend school that day) until 8:00pm;
e.On the birthday of any of [X]’s siblings, the parent with whom [X] is living shall facilitate [X] spending time with the sibling’s family on the sibling’s birthday from after school (or 9:00am if [X] does not attend school that day) until 8:00pm.
Changeover
10.That, for the purposes of these Orders:
a.Changeover is to occur at [X]’s school if the changeover coincides with a time [X] is at school; and
b.Changeover at all other times is to occur by the parent with whom [X] is about to commence living collecting him from the other parent’s residence.
Travel
11.That, in the event that either parent proposes to travel interstate overnight with [X], the travelling parent shall advise the other parent of their intended travel at least 24 hours prior to leaving.
12.That the parents do all things necessary to facilitate the issue of a passport for [X], and facilitate the renewal of the passport prior to the passport expiring, at their joint cost.
13.That, unless otherwise agreed in writing between the parents, the parents be permitted to take or send [X] to any country outside the Commonwealth of Australia where there is a “Level 1” advice level in place as issued by the Australian Government Department of Foreign Affairs and Trade, provided that:
a.The travel dates fall within [X]’s time with the parent proposing the travel pursuant to these Orders;
b.The parent proposing the travel advises the other parent of their intended travel, including location/s and dates, at least 60 days prior to the date of travel; and
c.The parent proposing the travel provides the other parent with copies of [X]’s flight details at least 21 days prior to travel.
Sharing of information
14.That each parent keep the other informed of their current resident address, mobile telephone number and email address, and advise the other of any change thereto within 7 days of any change.
15.That each parent notify the other as soon as practicable of the following:
a.[X] seriously injuring himself, or falling seriously ill;
b.[X] requiring urgent medical treatment by a medical practitioner and/or ambulance crew; and
c.[X] being admitted to hospital.
16.That the mother, within 14 days of the date of these Orders, authorise [X]’s school to provide the father with copies of all school reports, any other reports on school progress and behavioural issues, and all school circulars in relation to X.
[X]’s counsellor
17.That the mother do all things necessary to ensure that [X] attends upon a counsellor or psychologist ([X]’s counsellor) as needed, or as recommended by [X]’s counsellor.
18.That the mother request that [X]’s counsellor speak to both parents about [X]’s emotional needs, and provide strategies to the parents for supporting [X].
19.That the mother request that [X]’s counsellor provide family counselling to [X] and the father to improve [X]’s confidence in sharing his emotions, opinions and wishes with his father.
The father’s psychologist
20.That the father attend upon a psychologist (the father’s psychologist) for the purposes of exploring his patterns of emotional regulation and conflict management.
21.That, prior to any appointment with the father’s psychologist, the father provide to the father’s psychologist a copy of the Family Report dated 16 May 2022.
Parenting Program
22.That the parents participate in a parenting adolescents program, such as the ‘Tuning into Teens’ program.
Restraints
23.That each of the parents, their servants and agents, be and are hereby restrained by injunction from:
a.Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, their family or their partner to, or in front of, [X]; and
b.Discussing these proceedings or the contents of any documents filed, or intended for use, in these proceedings to, with, or in the presence or hearing of, [X], other than for the purposes of explaining the effect of these Orders to him.
24.That the father be, and is hereby, restrained by injunction from contacting or attending [X]’s school without the mother’s written consent.
25.That the father be, and is hereby, restrained from attending any of [X]’s sporting, extracurricular or social events during [X]’s time with his mother pursuant to these Orders, without the mother’s written consent.
Vexatious Litigant
26.That pursuant to Section 102QB(1)(b) of The Family Law Act 1975 the father be declared a vexatious litigant and prohibited from instituting proceedings in the Federal Circuit and Family Court of Australia without first obtaining leave of the Court.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer’s Orders sought were contained in the Case Summary Document filed 3rd June 2022; they were as follows (emphasis in original):
1.All previous parenting orders are discharged.
Parental responsibility
2.The Mother have sole parental responsibility for the child, [X], born [in] 2010, subject to Order 3 herein.
3.In exercising sole parental responsibility for the child in accordance with Order 2 herein, the Mother shall: -
(a) Give the Father reasonable notice of the decision to be made;
(b) Give the Father a reasonable opportunity to express any views;
(c) Take into account any views expressed by the Father; and
(d) Advise the Father of her decision as soon as practicable.
Living arrangements
4.[X] shall live with the Mother and spend time with the Father as agreed and failing agreement, as follows: -
During school terms
(a) Commencing in Week 1 of the school term and each alternate week thereafter, from the conclusion of school or 3.00pm Thursday to the commencement of school or 9.00am the following Monday; and
(b) Commencing in Week 2 of each school term and each alternate week thereafter from the conclusion of school or 3.00pm Thursday to the commencement of school or 9.00am Friday.
During school holiday periods at the conclusion of Terms 1, 2 and 3
(c) Term school holiday time commences at 10.00am on the day following the last day requiring [X]’s attendance at school and concludes at 6.00pm on the last day prior to attendance at school the following term.
(d) Where the school holiday period (including the first and last day of the school holiday period per paragraph (c), above) comprises an uneven number of days changeover is to take place at 2.00pm on the middle day of the school holiday period.
(e) Where the school holiday period (including the first and last day of the school holiday period per paragraph (c), above) comprises an even number of days, changeover shall occur at 6.00pm on the final day of the first half of the school holidays. For the avoidance of doubt, where the school holiday period comprises 16 days, changeover shall take place at 6.00pm on day 8.
(f) For the first half of the school holiday periods in years ending in an even number and the second half of the school holiday period in years ending with an odd number.
Christmas / New Year school holidays
(g) Christmas school holidays commence at 10.00am on the day following the last day requiring attendance at school in Term 4 and conclude at 6.00pm on the day prior to [X] commencing school in the following school year.
(h) For the first half of the school holiday period in years ending in an even number (at the commencement of the holiday period) and the second half of the school holiday period in years ending with an odd number (at the commencement of the holiday period).
Special days
5.Notwithstanding any other order, unless otherwise agreed in writing, [X] shall spend time with his parents at Christmas as follows:
In 2022 and each alternate year thereafter:
(a) From 4:00pm on Christmas Eve until 4:00pm on Christmas Day with the Father;
(b) From 4:00pm on Christmas Day until 4:00pm on Boxing Day with the Mother;
In 2023 and each alternate year thereafter:
(c) From 4:00pm on Christmas Eve until 4:00pm on Christmas Day with the Mother;
(d) From 4:00pm on Christmas Day until 4:00pm on Boxing Day with the Father.
6.Notwithstanding any other order, unless otherwise agreed in writing, [X] shall spend time with each of his parents on special occasions as follows:
(a) From 9.00am Mother’s Day to 9.00am the following day, with the Mother;
(b) From 9.00am Father’s Day to 9.00am the following day, with the Father;
(c) On his birthday, with the parent whom he is not otherwise spending time pursuant to Orders 4 (g) and (h) hereof, from 9.00am to 2.00pm;
(d) On each of the parents birthdays, with that parent, from the conclusion of school or 3.00pm to 8.00pm on a school day and from 9.00am to 2.00pm on a non-school day;
(e) On his brother, [T]’s birthday, with the Mother from 9.00am to 2.00pm.
Telephone communication
7.Each parent shall take all reasonable steps to ensure [X] has available to him, whilst in that parents care, a mobile telephone with which he can communicate with the other parent.
8.[X] may telephone or communicate with the other parent in accordance with his wishes.
Changeover
9. Changeover for the purpose of these Orders shall be: -
(a) At [X]’s school where changeover coincides with [X] being in attendance at school; and
(b) At any other time by the parent with whom [X] is to commence spending time collecting him from the other parent’s residence.
Travel
10.In the event that either parent proposes to travel interstate overnight with [X], the travelling parent shall advise the other parent of their intended travel at least 24 hours prior to leaving.
11.The parents to all things necessary to facilitate the issue of a passport for [X], and facilitate the renewal of the passport prior to the passport expiring, at their joint cost.
12.Unless otherwise agreed in writing between the parents, the parents be permitted to take or send [X] to any country outside the Commonwealth of Australia where there is a “Level 1” advice level in place as issued by the Australian Government Department of Foreign Affairs and Trade, provided that:
(a) The travel dates fall within [X]’s time with the parent proposing the travel pursuant to these Orders;
(b) The parent proposing the travel advises the other parent of their intended travel, including location/s and dates, at least 60 days prior to the date of travel; and
(c) The parent proposing the travel provides the other parent with copies of [X]’s flights details at least 21 days prior to travel.
Sharing of information
13.Each parent keep the other informed of their current resident address, mobile telephone number and email address, and advise the other of any change thereto within 7 days of any change.
14. Each parent notify the other as soon as practicable of the following:
(a) [X] seriously injuring himself, or falling seriously ill;
(b) [X] requiring urgent medical treatment by a medical practitioner and/or ambulance crew; and
(c) [X] being admitted to hospital.
15. The mother, within 14 days of the date of these Orders, authorise [X]’s school to provide the father with copies of all school reports, any other reports on school progress and behavioural issues, and all school circulars in relation to [X].
Parenting program
16. The parents participate in a parenting adolescents program, such as the ‘Tuning into Teens’ program.
Restraints
17.Each of the parents, their servants and agents, be and are hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, their family or their partner to, or in front of, [X]; and
(b) Discussing these proceedings or the contents of any documents filed, or intended for use, in these proceedings to, with, or in the presence or hearing of, [X], other than for the purposes of explaining the effect of these Orders to him.
Vexatious Litigant
18. The Application of the Mother seeking a declaration pursuant to Section 102QB(1)(b) be dismissed.
Costs of Independent Children’s Lawyer
19. Each of the parties pay the costs of the Independent Children’s Lawyer in such proportion and amount as determined by the Court.
The Father’s evidence
It is intended to assist the reader to set out in tabular form some specific aspects of the Father’s evidence. This is to provide something of a “snap-shot” of (a) his regular insults to Counsel (and her instructor), and (b) his insults (defined broadly) to the Court. Even in his written submissions (set out in full below), he refers to me being “stupid and corrupt.” To state the obvious, such comments are insulting (and obviously are intended to be so) and contemptuous of the Court. Multiple times he could have, and perhaps should have, been cited for contempt. Similar comments were made by the trial Judge in Beckert, noted by the Full Court, at [46]. There the Full Court recorded the trial Judge’s remarks, which apply equally here, as follows:
60. The husband’s conduct in the running of the proceeding at trial was conduct which disrupted the trial on numerous occasions causing delay and at times, an almost complete inability to progress the trial. His conduct was a deliberate frustrating of the trial itself...
…
62. The husband repeatedly failed to comply with the directions of the Court. He was on occasion offensive in his commentary and his behaviour, and so inappropriate as to compromise counsel for the wife’s capacity to cross-examine him and to be on occasion, contemptuous of the proceeding.
Over and above the Father’s insulting and contemptuous behaviour, there are genuinely even more troubling issues that arise from it.[3]
[3] It might be noted here that at the outset of the final hearing, the Independent Children’s Lawyer (“the ICL”) confirmed that the Father had not read the Family Report. T 3. Although not having read it, the Father stated a number of times that he knew what was in the Report. T 7. It was also confirmed that the Father’s most recent documents, because they were not in proper form and not sworn or affirmed, were “unsworn statements.”
First, as noted below, the Family Consultant recorded, at par.67, X saying that his Father “gets more of an angry tone” which makes him feel scared. If the Father “carried on” before X as he did in Court, it would be seriously troubling. Bad behaviour anywhere is unacceptable and inappropriate. Somehow the Father seemed (and seems) to think that bad behaviour is either or both acceptable or justified. It is not. As a role model for his son, bad, belittling and insulting behaviour anywhere, but especially in front of X, is intolerable. Further, as set out below, the Father’s very bad, insulting behaviour was not/is not confined to the Court room. Abuse seems almost to be his default response, including to X’s then counsellor, and even at the dentist. Alarmingly, no one, it seems, is “off limits.”
Secondly, again to state what should be obvious, offensive and insulting behaviour of the kind consistently shown by the Father in Court on multiple occasions, would have the most severe consequences if done elsewhere, such as in the workplace. How and why he thought, or thinks, it was and is acceptable, as well as smart, in a Court is a mystery. Worse, his conduct showed an alarming lack of insight at multiple levels. For example, how or why he might think that his cause (and X in particular) would be helped by refusing to answer questions, by being insulting, and aggressively offensive, is likewise a mystery. Children who act badly are usually punished. Childish excuses like “the devil made me do it”, are just that – childish excuses. So too are epithets like “it’s the fault of the family law system.” Most people would accept that some punishment or adverse consequence for delinquent or bad behaviour generally would be appropriate. “Punishment” (not in a penal or criminal sense of course) is also meant to be educative and to inculcate a sense of responsibility for one’s actions. Regrettably, the Father’s conduct indicated clearly that he deliberately chose to be offensive and insulting. As already noted, it showed an astonishing lack of insight, and/or misguided chutzpah that his offensive conduct would be tolerated and/or would have no consequence or repercussion. His claims that he was in some way justified in his bizarre offense because of the conduct or misfeasance of others, was as puerile as it was misguided.
The following is a summary of parts of his evidence:
Pre-hearing Compliance Check on 22nd March 2022
Directed to
Details of Insult and / or behaviour
The Court
MR MANUEL: Bollocks. T 4
MR MANUEL: I don’t like lies, your Honour. I don’t like lies. T4
The Mother
MR MANUEL: No. Ms Pinner’s application is basically to take the child away from his dad. T 10
The Court
MR MANUEL: Let me tell you I am a victim of the child – of the Family Court as a child. I’ve been through what Ms Pinner is attempting to do. You don’t like me. I know you don’t like me. T 11
MR MANUEL: Guess what? I’m a result of the system. T 11
MR MANUEL: You, your Honour. You don’t like me. I’m quite happy to accept that, but I’m a result of the system. I was a child who suffered with what Ms Pinner is asking for of an every second weekend father. You don’t like what I am? You don’t like who I am? Fine, but this is what created me. It destroys children’s lives. T 11
Interim Hearing in relation to the Father’s Recusal and Contempt Application on 2nd May 2022
Directed to
Details of Insult and / or behaviour
The Court
MR MANUEL: Just because people don’t have the balls to stand up to this corruption is not my issue. T 2
MR MANUEL: I might start answering questions when you start answering questions. What law are you basing my refusal to access this room? I’ve asked that 20 times and nobody answers, but you demand answers from me. Why is it one way… T 6
The Court and the Mother’s lawyer
MR MANUEL: I’ve got physical – I sat there last hearing, and I said, I’ve got physical evidence of contempt and lies by Ms K, and you put me on mute. T 7
The Court
MR MANUEL: You seem to take issue with the fact that I’ve got a penis between my legs, and I’m sick of it. T 7
MR MANUEL: Are you going to recuse yourself today for your utterly appalling behaviour over the last six, seven years? T 7
MR MANUEL: Piss off. T 7
MR MANUEL: That’s it. You lied. You lied. I did - - - T 8
MR MANUEL: Now, if they’re happy to have their human rights shat all over, that’s up to them. But I don’t accept that. I follow law. If everyone is happy to provide their private medical information, that’s up to them. But I choose not to, and you have no legal right to enforce it, do you, yes or no? - T 10
MR MANUEL: Exactly, because of the lies that are told by just about everyone here. The lies - the last time we were here, when I got moved - pushed off into that room, I asked, “Why am I in here? You asked to be here?” No, I didn’t. You just lied to my face. I didn’t ask to be there. Why are you so happy to accept lies in this courtroom? T 11
MR MANUEL: You are bound by law. Is there a law which bars me from crossing that threshold; yes or no? T 11
Final Hearing 25th and 26th May 2022
The Court
MR MANUEL: Mr Neville, I have a copy of the report. T 4
The Court
MR MANUEL: …This is what the system does. This is what the family law system in the western world does. It destroys people’s lives. You have successfully done that. I could ask if you’re proud of that fact, but you won’t answer. T 4
The Court
MR MANUEL: I’ve proven you to be a liar. I’ve proven Ms K to be a liar. I’ve proven Ms L to be a liar. I’ve proven Ms D to be a liar. And every time I do so, I’m told to shut up. T 5
The Court
MR MANUEL: I go back before. Before I answer will I, I go back to the statement I’ve proven you to be a liar, I’ve proven Ms K to be a liar, I’ve proven Ms L to be a liar, I’ve proven Ms D to be a liar, and I’ve presented evidence after evidence after evidence for many, many years, and it has all been disregarded, and I’ve been told to piss off - in not those exact words, obviously, but insinuation. Is there any point in me even being here when all of that has been presented to the court, and it has been disregarded? T 6
The Court
MR MANUEL: Answer the question. T 6
The Court
MR MANUEL: Answer my question. What’s the point? T 7
The Court
MR MANUEL: Yes, details. I know?---Yes. Who gives a shit? He’s just a – yes. T 8
The Court
MR MANUEL: Ms Pinner’s statement, which I have put into evidence on God knows how many occasions, was that unless I tell her - “ paraphrasing“ - what time I’m taking a shit on a Monday morning, she’s not going to give - - -consent. T 13
In addition to the above, the Father’s evidence was as follows.
Very early in his cross-examination the Father commented, as he did on multiple occasions that any reduction in the current equal time arrangement between X and his Father would result in “a Dad being taken out of a kid’s life”, or “taking a loving Father out of a child’s life.”[4] He confirmed that even a single day reduction in his time with X was taking him out of X’s life.[5]
[4] T 12.
[5] T 9, 12, 13, 15, 17, 82, 115, 124 and 136.
The Father confirmed that he had been having panic attacks as a result of these proceedings and that to assist him in this regard he had been referred by his GP for psychological assistance and/or counselling. He also confirmed that he was taking antidepressant medication. When asked how long he had been on this medication he said: “since Ms Pinner started attacking my name and making false allegations and generally attacking me as a person and a Dad.”[6] The added emphasis is intended again to highlight the nature of the Father’s generalised, and conversely unparticularised, assertions.
[6] T 10.
Otherwise, the Father refused to provide any other medical or psychological information because, in his view (and repeated many times), it was “a private medical matter.” When asked further why his medical information or “psychological wellbeing” was not an important consideration for the Court his curt response was simply: “here we go.” In more detail was the following exchange:[7]
[Mr Manuel], do you understand that your psychological wellbeing may be a factor that would be relevant to his Honour in considering what orders to make that are in [X]’s best interests?---Do you understand that the family law system – the judge, lawyers like you, [Ms Pinner], the false allegations and the general destruction of my name and character and position as a dad – has affected me?
[7] T 11.
The Father said that he had not read the Mother’s case outline because “the system has destroyed my mental health, taken me back 30 years, and I haven’t been able to read any emails with regards to this matter in many weeks.”[8]
[8] T 12.
The Father confirmed that his reference to “thirty years ago” was a reference to his involvement with the Family Law system in New Zealand 30 years previously. He said that “the family law system destroyed my childhood.”[9] There was the following further brief exchange between Counsel for the Mother and the Father:
I thought it was a question. My apologies. [Mr Manuel], are you saying to his Honour that the part of the orders that the mother seeks for you to spend half of the holidays with [X] and for the mother to spend half of the holidays with [X], just in relation to holidays, is removing [X] from your life?---Yes.
Could you explain why that’s your view?---Because it is.
[9] T 12.
When Counsel tried to explore the Father’s understanding and reasoning she was met by comments along the following generalised lines:
She’s seeking orders that you spend time with him regularly. You understand that, don’t you? Do you understand that? She’s seeking orders that you spend time with him every alternate weekend. You understand that, don’t you?---And do you realise that every second weekend, there’s the same playbook that has been played for 47 years, and it destroys people’s lives?
To say that the Father’s responses were repetitive, based upon stereotypes in his view, is nothing more than to say that his standardised criticisms were not helpful.
Next came the first of a number of cautions to the Father, the first time about the way that he improperly addressed the Court which led to this somewhat belligerent, petulant and needlessly juvenile response:[10]
You may refer to me as my preferred pronoun of “god”, then. If you don’t like it – I will be addressing you respectfully as Mr Neville. That’s your name.
[10] Other cautions were found at T39 – 42 which included his regular allegations about various people lying and also that the system itself is also “the bully” that he was standing up to.
After trying to canvass with the Father a range of Orders as sought by the Mother, for example, school holiday time, the Father’s evidence focused, as it did often, upon the number of “firsts” that he had undertaken with X, as if parenting was some sort of contest which, in his view, he clearly has won compared to the Mother. Put slightly differently, it was as if the Father felt it essential to note a range of experiences so as to justify his parenting of X and also so as to set up an adverse comparison with the Mother. It followed, according to the Father’s evidence, that he had done almost infinitely more “firsts” with X than the Mother. As already noted, his evidence was regularly presented as if parenting was a contest between him and the Mother. Thus:[11]
And you describe in your statement that you have adopted as your evidence for the purposes of these proceedings a lot of firsts?---Absolutely, and if I’ve – if you look at all those firsts, and you go, “Well, what has [Ms Pinner] done?” If I’m the one doing this, what the hell has she done?
[Mr Manuel], are you having a go at [Ms Pinner] and her parenting when you say that?---I’ve been had – my parenting has had – been torn to shreds by [Ms Pinner] for six years.
I’m not asking you about that. I’m saying are you being critical of [Ms Pinner] and her parenting of [X]?---This is ridiculous. In both the CIC and the family report, I blew smoke up [Ms Pinner’s] arse for the entire thing - - -
What do you mean by that?--- - - - going – praising her, saying she’s a good mum, [X] loves her – sat there for hours with witnesses, because I don’t go anywhere without witnesses. I praised her, and then you say a couple of things, going, “Well, maybe she’s not so good at this, and maybe she’s not so good at that,” and then that turns around to that’s the only thing she concentrated on. That’s exactly what the CIC did. There was one thing that I said where she refused to allow [X] to go to football training, and that’s pretty much all the CIC was – “[Mr Manuel] said she’s a bad mum”, blah, blah, blah. It didn’t say anything about the 45 minutes that I spent saying she’s a good mum and blah, blah, blah.
But she is a good mum, isn’t she, sir?---Yes, she is.
She’s an excellent mum?---I keep saying that.
[11] T 17.
Fairly, and consistently the Father confirmed that the Mother is actually a good Mother and that X loves her. He maintained that despite of all the “attacks” that he said the Mother had launched against him, destroying his character and attacking him personally and “all of that stuff”, he said he did not ever want to take the Mother out of X’s life because X loves her and she loves him, and X needed his Mother. The inference also clearly was that the Father should not be taken out of X’s life in any way. Indeed he confirmed that unless X spent equal time with each parent it would be detrimental to X.[12]
[12] T 18.
Next followed an unfortunately typical example of the Father’s view and disposition generally towards the Court and the family law system:[13]
HIS HONOUR: Even people in court get yelled at?---Absolutely, if they – yes. People get yelled at all the time. You’re trying to turn this around quite easily to go, “[Mr Manuel’s] the baddie. [Mr Manuel’s] the baddie. [Mr Manuel’s] the baddie.” It’s obvious. This is playbook 101 for family law for 47 years. It’s the same thing. We know the playbook.
[13] T 19.
The Father maintained that there were double standards that applied to the Mother and to him, for example, of the Father being a coach of X’s sports team, which, according to the Mother, caused issues for X and others in this regard, while the Mother could be the manager of X’s sports team. In another of the Father’s generalised and unspecific criticisms, he remonstrated that “the double standards are astounding.”[14]
[14] T 19.
The Father did acknowledge that it was possible that X may have spoken to his Mother that he found some of the ways that the Father had spoken to other members of X’s sports team as being upsetting. He also accepted in such circumstances that X could have possibly not liked it. [15]
[15] T 19.
There was some discussion in relation to X’s expressed views to his Mother and with the family consultant that he did not enjoy camping as much as his Father thinks, or that he necessarily wanted to keep going to the Event B. The Father’s general response in most instances when there was a challenge to his assessment of X’s views, and in contrast to X’s views as recorded for example by the family consultant, was to the effect that no-one else was with X during any of these events (e.g. the trip to City B) therefore they did not have firsthand or actual knowledge, as the Father did, of how much X enjoyed these events.
Next there was the following exchange with the Father regarding the family report writer and his generally strident views.[16]
MS CURRAN: And so if he told that to the family report writer but not to his mum – I’m quoting from what he said to the family report writer – does that still mean he’s telling someone what they want to hear, or is it possible it’s actually [X]’s view?---It depends, because that family report writer is following a certain model, which is, “Dad is a piece of shit. Dad is a piece of shit.”
HIS HONOUR: Would it be fair to say, [Mr Manuel], that you have strident views about a very wide range of things?---Everyone does.
Really?---Well, if – if you don’t have strong views or views on a lot of things, you’re – that’s called narrow-minded.
[16] T 21.
Another instance where the Father has taken a confrontational approach, arose when he reported X’s school to the ACT Human Right’s Commission in relation to X wearing a face-mask. From this Court’s perspective, the issue is not whether or not the Father receives (as he said he would) an apology from the Department of Education, but more so the Father’s quite dramatic and confrontational approach over the rather modest issue of a health mask that is designed to protect the wearer, and others. One might reasonably wonder how such an approach in taking X’s school to the Human Right’s Commission might impact upon X himself.
Next followed a discussion of sorts with the Father in relation to his aggressive engagement with X’s then counsellor Mr U. The Father said that Mr U “deserved” the kind of response that he was given. Regrettably, because of the foul, aggressive and disproportionate language used, and the somewhat lengthy exchanges, it is important to set it out in full.[17]
[17] T 22. See also T 34 and 35.
Is it right that you said:
Misunderstanding? Fuck off. You were a cunt. Don’t try and hide behind your misunderstanding. Grow the fuck up and admit your failures and your own actions. You knew exactly what you were doing. That just shows your failings as a counsellor. Counsellors are people who fail to attend medical school and get a degree in psychology. If you treat people the way you treat me, then there’s no fucking way I will let you speak to my son, and no referral from you is worth the paper it’s written on. You are the reason 6.85 men take their lives every day in Australia, a huge chunk of them due to being treated like second-class humans in the family law system. You have no consent from me to discuss any communication you have with me or anyone else, meet, talk with [X]. Do not contact me ever again. This is your one and only cease and desist request. Failure to follow this will result in me filing a personal protection order against you in the ACT Magistrates Court.
?---Correct.
And you sent that in February this year?---It could be. I can’t remember the date, but, yes.
You understood that [X] was – that [Mr U] was [X]’s counsellor at the time?---I didn’t know, because no one had given me information. I was refused access because I was the dad.
And what access did you want?---I wanted to know whether he was seeing [X], what was going on, whether there was any concerns – the usual parenting questions for anything – and I was refused access because I am a dad.
And you would accept, wouldn’t you, that if [X] was getting some benefit from seeing a psychologist like [Mr U], or a counsellor like [Mr U], that it would take a bit of time for an 11-year-old boy to develop trust with that sort of person and to engage in that process?---Yes.
You would call that biology 101, wouldn’t you?---Yes.
It will be seen from the troubling exchanges above that the Father conflated whatever Mr U’s response was, on the one hand, and on the other, equating (or assuming) that response was simply and solely because the of the Applicant being X’s Father; “because I am a Dad.” To state what should and would be obvious to most people, the Father’s abusive and offensive language to his son’s counsellor was outrageous. In the Father’s bizarre view of things, Mr U got what he deserved. How or why a counsellor who was assisting his son should be treated in this aggressive and confrontational way, including with threats of legal action, was astonishing. In my view, it was one of many very stark instances which showed how illogical and deeply troubling the Father’s conduct is, and what a seriously jaundiced view he takes of matters that could and would usually be resolved in a much more benign, and much less confrontational, manner. To say that the Father was almost one dimensional in his belligerence and response to any number of people, in circumstances that were not remotely warranted to be treated in such an extreme way, is another significant understatement.
The Father refused to provide any information in relation to his current partner. I might add that his longer-term partner, Ms AE, in dealing with the Court was always very respectful in every way, even in some circumstances that were understandably very upsetting for her in Court during the hearing.[18]
[18] See T 43.
Another occasion of contest between the Father and those providing assistance to X occurred in relation to the dental practice X attends. The Father said that the dentist was good but the office manager was not. The Father said that he sought copies of X’s dental records from the practice and claimed that the office manager said “you’re just the Dad. You have got to get Mum’s permission.” The practice manager then hung up on the Father.
It is bizarre in the extreme how many instances the Father gave where, allegedly, each person with whom he is in aggressive contest, declines either to assist or to provide information to him because he is “just the Dad”.
At this juncture in the Father’s cross-examination the Father became noticeably upset and fled the Court room. The exchange was as follows:[19]
Is it the case that you have difficulty regulating your emotions at times?---No. No. You feel as though you’re perfectly in control of your emotions?---Mmm. And so it’s a conscious choice when you escalate or become loud or swear at people; you know what you’re doing fully, and you’re completely in control of your emotions?---I’m not going to answer any more of your questions.
Sir, it’s true, isn’t it, that you come across to some people as angry and intimidating; do you agree with that?---How people feel is their concern.
Well, your - - -?---You’re – they’re in control of their emotions. They’re in control of their feelings. If they feel [X], then that’s up to them.
Your partner, [Ms AE], even said to the report writer that you could be viewed as intimidating. That’s at paragraph 50 of the report you haven’t read. So even people close to you form the view that you can across as intimidating. Do you accept that?---I think we’re done here. [X], I love you. I’m sorry you were dragged into this destructive system. I tried my best. I fought till the end, but the system was always going to be against me and your dad. I love you. I’m sorry your life has been destroyed.
HIS HONOUR: Are you coming back, [Mr Manuel]? Perhaps if I could ask [Mr Manuel’s] colleagues to support him in whatever way is necessary, and if someone could maybe let Mr Robinson know whether [Mr Manuel] is going to come back.
[19] T 25.
After approximately 30 minutes the Father came back to Court and re-entered the witness box. Initially the Father said that he would refuse to answer any more questions from “this person”, being Counsel for the Mother.
Then followed this longer exchange:[20]
[20] T 26 – 27.
They were – Ms Curran’s questions were standard questions to parents, regardless of gender, [Mr Manuel]?---I didn’t mention gender. You brought that up.
Well, you raise it regularly, and you bellowed from the court door on the last occasion about the (a) the predetermination of the system, (b) your gender, which you helpfully reminded me of in some fairly graphic ways. Not sure that I needed to be reminded, but still, you felt it helped. I didn’t see that it did. But if you don’t answer questions, you could end up being deemed to have abandoned your case?---I’ve made my case.
Where and how?---Six years of submissions, repeating myself over and over and over again.
Right. So – but you understand I’m expressing them as concerns for you, [Mr Manuel], which I expressed in my last judgment that I assume that you didn’t read, and the concerns that I regularly express to distressed parents, regardless of gender. And the position that you may be placing yourself in if you don’t simply undertake – yes, it is testing. Yes, it is frustrating. Yes, it can be angst-producing. And clearly, there is a lot of concern or there’s a huge legacy from whatever happened during the situation when you were a child and the separation of your parents. I don’t know – and it’s simply because I do not know – I don’t know whether or not that was in Australia or whether or not that was in New Zealand. I do not know, but the legacy of that obviously is profound for you. So they are expressions of concern. They’re not accusations. You seem, on your material and also from your comments over the last two occasions when we’ve been together – one time virtually, one time, as I say, from you at the door – you seem to have beefs with a great many things and people, whether it’s the health system, the court system, psychologists – the list seems long. It must be a very frustrating, awkward and draining existence to be so apparently at odds, and seriously, grievously at odds with so many systems and people. Would you confirm that you are not going to answer any more questions, you say, from Ms Curran; correct?---Correct.
And if any similar questions are asked by Mr Robinson, you will – you likewise refuse to answer them?---We will see how it goes.
Well, I don’t know whether or not it’s like a pick-and-choose - - -?---Yes. - circumstance?---I’m not going to sit here and be abused and - - -
You were not abused?--- - - - have my character assassinated and – I’m not going to sit here and do that. All right? I’m a fucking good person, and I’m a fucking good dad, and I’m sick of being assassinated. All right?
Simply being asked questions is not an assassination, [Mr Manuel]. If you have that extreme view, I’m sorry for you. Ms Curran, in these circumstances, what do you say? You can either, obviously, try and ask a few more questions, and if [Mr Manuel] again - - -
Yes, I would prefer that course, your Honour. I’m not in any way trying to upset [Mr Manuel], but I do have - - -
The questions then moved to another area where there was some contest between the Father’s view of X’s interest in attending a concert by the band AD and some different views of X reported to the Mother.[21]
Could I read to you her email, and it says - - -?---Don’t bother.
Continuing:
As for the [AD] concert, if you feel it is appropriate to take an eight-year-old to see a man like that, it’s up to you, but I’m agreeing to this as I had previously. A reminder, though – as I said, if you want to take [X] to further concerts, please do so on your weeks only. It is too disruptive to him and his family’s routine to be chopping and changing like this.
So that response, sir, about – it’s disruptive to her routine – do you think that that’s a reasonable approach from the mother?---Disruptive to her routine, because that’s the only response we ever get – it disrupts hers.
[21] T 28.
The next topic that was briefly canvassed with the Father, to which there was later reference also, concerned the Mother and her household. It was confirmed to the Father that the Mother’s family unit comprised her wife Ms S and their child T, who is X’s brother. To this the Father would only acknowledge that “they are the people that live in the house.” The response was petulant and immature. He maintained, however, that the Mother’s Wife, Ms S, was an abusive person “who has threatened and harassed and intimidated me for 9 years – that person.”[22] He said he did not know if “that person” was an important person in X’s life.
[22] T 30.
The Father described the Mother’s separation from him as destroying his and X’s life. He said this was the view of certain members of the Mother’s family as well. He was adamant that the Mother’s separation from the Father had destroyed a child’s life, meaning X.[23] To this and related matters the Father aggressively responded in the following terms (emphasis added):[24]
[23] T 31.
[24] T 32.
And you still feel very strongly about that, do you?---If someone – you are fucking stupid. You really are.
HIS HONOUR: Excuse me, please?---If you don’t think that destroying – if you think that if a child’s life is destroyed and you should think that that’s a good thing, you’ve got some serious concerns. Destruction of children’s lives is child abuse, and that is not good. If you think it’s good, I can’t help you.
MS CURRAN: The family report writer refers to [X] having a wonderful and close relationship with his mother and his stepmother and his family. You haven’t read that, but can you accept that – that that was the family report writer’s impression of [X]’s connection with his mum and stepmum and brother?---He loves his mum. I’ve said that time and time again. I get sick of repeating it.
And he loves his - - -?---He loves his mum. His mum loves her – him. I love [X]. [X] loves me.
And you – by omission, are you saying that he doesn’t love [Ms S] and [T]?---I don’t know.
And do you ask him about that ever – about his life with - - -?---I’ve got no reason to ask [X] anything about that.
You have no reason to ask him. Do you think he knows that you don’t think very highly of his stepmum?---I talk to [X] about lots of things.
Well, do you talk to him about that?---I talk to [X] about lots of things.
Do you talk to [X] about how you have a poor impression of his stepmum?---I don’t talk to him about that person.
“About that person” – you mean [Ms S]?---Correct.
His stepmother. You don’t – do you refer to her name when you - - -?---No.
Having noted earlier that the Father had not read the family report prepared by Ms AF, he was again asked about the recommendations in it. He maintained that everything stated by the Mother recorded by the Family Consultant would invariably be taken “as gospel” whereas everything said by him would be “just gone – yes probably not”.[25] He maintained he has produced “evidence galore” of his claims and assertions. Unfortunately details were here lacking, as was often the case.
[25] T 33.
A brief excursus is important here to address the regular claim by the Father that he has provided “evidence galore.”
First, by providing “evidence galore”, or indeed, any evidence however described, does not, of itself and certainly not without more, make it into relevant and or admissible (let alone probative) evidence that is accepted by the Court. The Father’s vehemence about his evidence, and his general certainty of its veracity, regrettably, (a) takes no account of any counter-vailing evidence (e.g. from the Mother or the ICL), and (b) ignores the standard litigious process of evidence being tested and evaluated at a final hearing. Conversely, it ignores the danger of a Court accepting, as “evidence” (and thereby, in the Father’s views, any and all assertions made in it) email correspondence, or an unsworn Affidavit during any interlocutory hearing, and especially so at a directions hearing or similar. The Father makes no distinction between any of these various stages of litigation and the processes involved. And such stages are not peculiar to “the family law system.” Moreover, for a significant part of this lengthy litigation, the Father was legally represented by an experienced family law practitioner. The Court may reasonably assume that in the course of him being legally represented he was advised of what did, and what did not, constitute “evidence.” In particular, it would be remarkable if he had not been relevantly advised that a mere assertion, without more, was not evidence, and that the proper process for the Court to accept or reject evidence invariably took place only at a final hearing.
It should be noted that most of the Applications filed by the Father relied upon by the Mother are Contravention Applications. There is no doubt that, on the Father’s evidence, he was “compelled” to file such Applications to ensure (in his view) compliance by the Mother with Orders. There is also no doubt – the evidence by the Mother and unchallenged by her psychologist was/is compelling – the Mother finds (a) dealing with the Father generally a regularly difficult and anxiety-producing exercise, and (b) the steady flow of Contravention Applications is highly vexing and inevitably costly. Further, as recorded earlier, the Mother requested the Father to withdraw his Application to change X’s primary residence arising from the Mother’s hospitalisation. Her evidence explaining the situation, her limited time in hospital, and the obvious availability of the Mother’s partner to care for X if need be, all pointed to a ready and easy solution. The Father persisted in his Application.
Notwithstanding the number of Contravention Applications, and the various other Applications of the kind just noted, in my view, the evidence does not relevantly meet the standard to make an Order of the kind sought by the Mother. That said, it would likely not take too much more to tip it into a more than reasonable vexatious litigant case.
For the reasons just given, in my view, the most appropriate course is not to go down the road of the vexatious litigant Application, but more so, for the sake of both parties, and on the basis that it is in the interests of the administration of justice, that both parties be restrained from filing any further Application without the prior leave of the Court. The object here is to give the parties, and X in particular, some respite from the incessant litigation that has consumed everyone for years. Also, as it seems to me, it is best to treat both parties in exactly the same way – hence the mutual restraining Order pursuant to s.114 of the Act, and pursuant to s.140 of the FCFCOA Act. The purpose of such an Order, in case it needs to be spelt out further, is to protect the parties from further, needless litigation.
In making this Order, I have had relevant regard to the principles set out by the Full Court in Pencious. I should not, however, be taken to make or to give any indication regarding any possible future consideration of any similar Application by either party. Otherwise, given the extremely limited submissions made on behalf of the Mother regarding this Application, in my view, it would not be appropriate to make such an Order, certainly not at this stage. I agree with the ICL’s submissions in this regard.
For ease of reference, I also agree with and accept the ICL’s submissions on the different subject of the Rice & Asplund issue. I need say no more on that subject.
For completeness, because of the strong and firm findings by me in these reasons, it would not be appropriate for me to continue to hear any future Application, if filed, by either party. Accordingly, if any Application is filed by either party, which obviously would require relevant prior leave of the Court, it should be heard by a Judge of the Court other than me.
Other matters – costs
The Mother presses her multiple costs Orders, which arise from various formal Applications, and various Orders earlier made reserving either the parties’ costs generally or the Mother’s costs specifically.
The principles that apply to costs Orders and awards, under s.117 of the Act, are well known. Although well known, it is sufficient to note the following from the Full Court decision in Stephens v Stephens.[128] Beginning at [62], the Full Court said (emphasis added):
[128] Stephens v Stephens (2011) 44 Fam LR 117.
[62] Section 117(1) of the Act provides: “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
[63] Section 117(2) of the Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub-ss (2A), (4) and (5), and the applicable rules, make such order as to costs, whether by way of interlocutory order or otherwise, as it considers just.
[64] Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130 [41]:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
[65] As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
[66] As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
[67] We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
In the same case, the Full Court commented summarily on the award of indemnity costs, relevantly at [73]:
An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].
The decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (noted by the Full Court) is a regularly cited authority for relevant principle regarding the awarding of indemnity costs.[129] In that judgment, his Honour outlined the following principles, at pp.232 – 234, which I set out in full (emphasis added):
[129] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:-
1. The problem arises in adversary litigation, i.e. litigation as between parties at arm's length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority.
2. The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of Order 62, rules 12 and
19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v. British Transport Commission and Handley JA in Cachia v. Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal)and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
In general terms, as earlier recorded, there have been multiple Applications filed by the Father, and subsequent Orders, reserved costs generally in favour of both parties, or specifically in the Mother’s favour. In the first instance, I am here referring to two unsuccessful recusal Applications filed by the Father against the former ICL and against me; the latter included a contempt Application against the Mother’s long-time lawyer. Subject to what is said below, the ICL and the Mother should have their respective costs as detailed below. The reasons for such Orders should be taken to be not only for the reasons set out regarding those Applications, but also in particular, the unfortunate actions of the Father already recorded in those judgments.
For example, in relation to the ICL recusal Application, the reasons noted that the Father had sought to interview multiple proposed experts in order to evaluate their expertise for the preparation of a report. To state the obvious: the Father has no qualifications in psychology, and notwithstanding his professed knowledge of family law systems in the western world, nor does he have experience in the preparation of expert psychological reports for Courts in family law proceedings. His conduct was wholly disruptive in this regard. Unsurprisingly, all experts so approached declined to be involved in the proceeding. His conduct seriously delayed the appointment of an expert to prepare a Report, the primary object of which was to assist the Court in making Orders that are in X’s best interests. The Mother had agreed to pay for such Report in its entirety. The Father showed astonishing lack of insight, as well as disturbing presumption. His judgments in taking this course of conduct, on multiple occasions, was imprudent in the extreme. It put the Mother to extra expense.
The Father was wholly unsuccessful in both “recusal” Applications. As noted, the second “recusal” included a contempt Application against the Mother’s lawyer. The contempt Application was wholly without merit, as the ICL endeavoured to explain to the Father prior to the hearing of it. The Mother should have her costs for these two Applications.
In relation to the recusal Application concerning the ICL, there should be a costs Order in the Mother’s favour of $4,500.00. It is a slightly higher amount because of the disruptive conduct of the Father over a significant period of time. In relation to the Application for the contempt Application against the Mother’s lawyer, and my recusal, a fixed sum for costs of $4,200.00 should be made in the Mother’s favour. In relation to the latter, it should have been withdrawn because, among other things, it was improper as to form, which had been pointed out to him by the ICL. He also had the benefit of the law regarding recusal and bias set out in the recusal judgment concerning the ICL but failed to have proper regard to basic principles there set out.
Both of these costs awards are to be paid within 60 days of the date of these Orders.
Regarding the first recusal Application, which involved the first ICL, the Court reserved her costs. This related to the Father’s Application that she be found by the Court to have exhibited bias towards the Father. The Court dismissed that Application. Counsel was retained by the ICL to draft submissions on her behalf. The ICL should have her costs regarding the first recusal Application for the same reasons as the Mother. Those costs shall be fixed at $4,000.00. These costs are also required to be paid within 60 days.
The next area to consider regarding “costs” relates to ongoing Contravention Applications filed by the Father over a significant period of time. The detail of them is conveniently set out in the Mother’s Tender Bundle at pp.172 – 208. It was also set out in the Mother’s Affidavit, filed 26th July 2021, and Application in a Case of the same date. From this material, and the Mother’s Application and Affidavit, filed 26th July 2021 (especially at pars.13 – 24; pars.25 – 37 which outline the Mother’s attempts to resolve the various Contraventions themselves, while pars.38 – 39 refer to attempts to resolve costs regarding same), it is sufficient to note the following.
What might reasonably be called the “primary” Contravention Application was filed by the Father on 6th September 2017. The Father’s contention was that the Mother had breached Order 1 of the Final Orders then in place. That Order provided (emphasis added) that “the child is to have telephone communication with the non-resident parent on no more than 3 occasions per week and any other times that the child expresses a wish to do so.”
The Mother’s basic argument was that there was no mandatory requirement specifying telephone time because the Order only specified “no more than 3 occasions.” Further, factually, the Mother contended that (a) she facilitated X telephoning the Father on Tuesdays, Wednesdays and Sundays, and (b) she did not facilitate a third call on a Sunday when X was going into the Father’s care on that day. In these circumstances, the Mother said that the Contravention Application was doomed to fail because of the wording of the Order and because of the factual circumstances. Accordingly, the Mother urged the Father to withdraw his Application, which included him withdrawing an Amended Contravention Application filed 27th September 2018, which alleged a further 6 breaches of the same Order.
As an observation only, the Order said to have been contravened by the Mother on multiple occasions would, strictly speaking, be complied with even by a single telephone call, precisely because the Order provided for a maximum or optimum number of calls, not a mandatory number of calls, each week between X and his Father. A plain reading of the Order confirms this. It is (and was) unfortunate that this was not pointed out to the Father much earlier in the piece. As a result, much needless time, and expense, for both parties (as well as the Court) was expended and incurred.
By way of further overview, I note the following which records the number of Applications, the various costs Applications, and various Orders regarding same, over the life of the litigation, but in particular in recent years. In addition to what has already been stated regarding costs, the following summary is sufficient for the Court to make Orders for costs in the Mother’s favour in the sum of $42,000 regarding the contravention Applications that were regularly traversed between 2017 and October 2020, and which the Father was invited, indeed requested, to withdraw on multiple occasions. As outlined in a letter dated 7th May 2021 from her lawyers, the Mother noted that the Father had been invited to withdraw his Contravention Application(s) on 20th October 2017, 14th March 2018, 1st August 2018, 29th May 2019, 19th September 2019 and 14th August 2020. This letter was part of the Mother’s Tender Bundle at p.205; it was also annexed to the Mother’s Affidavit, filed 26th July 2021.
During this period, there were various occasions when the hearing could not, or did not proceed, which included the difficulties as well the demands upon the Court’s calendar which meant that it could not always be accommodated as quickly or as early as would have been desirable. It is for these reasons that the sum now awarded, on a party/party basis, is somewhat less than the amount the Mother was seeking, being over $70,000. That said, given (a) the pernickety nature of the contravention, (b) the plain reading of the Order in question, (c) the regular invitation/request of the Mother’s lawyer to the Father to withdraw the Contravention Application, and (d) the Father’s conduct of indicating the Application would be withdrawn if the Mother did various parenting courses (which she did), and if her conduct changed (but nothing about his own conduct), but the Contravention Application was not withdrawn until late in 2020 at the Contravention hearing before a Registrar, the award of $42,000 is more than justified and, in my view, accords with the principles set out by the Full Court in Stephens v Stephens. Formally, and in every other respect, apart from a Response in 2018 in which he sought indemnity costs from the Mother, the Father has never addressed the Mother’s multiple Applications for costs or the Court’s reservation of costs Orders. As the correspondence noted above confirmed, the Mother’s lawyers wrote to the Father on multiple occasions urging him to withdraw his Contravention Application on the basis that it was without merit and a waste of costs which they would pursue. They also offered to resolve the costs issue for much lesser sums than what is now sought, as set out below.
This sum of $42,000 is to be paid within 90 days of the date of these Orders.
Conclusion
I end these reasons as I began them – with a lament. So much of this litigation has been coloured by the Father’s hugely jaundiced view of “the family law system” and anyone connected with it and by his obdurate and offensive behaviour. His grief, and many grievances, clearly date from his experiences as a child in New Zealand and the separation of his own parents and the Orders made then. It is good that he has sought some assistance to deal with this grief and obvious ongoing grievances.
Regrettably, however, the Father’s unrestrained and offensive conduct in the last years of this matter were a wasteful and needless protest. At best, his claims were mindless generalisations, unsupported by any relevant evidence. He did his case no good at all. At worst, his unregulated diatribes, unrestrained swearing and insults – diverse, colourful and fantastic as they regularly were – were very troubling regarding the Father’s complete incapacity and general inability (or simple refusal) to see what he was doing to his case and how it was likely to impact upon Orders for X. His frustrations, hurts and all else, clearly blinded him to seeing what would actually assist the Court and X. As stated multiple times, he plainly knew what he was doing and cared not a jot for the consequences because it was always the fault of the dreaded and corrupt family law system, or someone else, as he recorded in his list of such offenders in his Submissions in Reply. He could not, and will not, take any responsibility for his own conduct. To put it colloquially: by his appalling and outrageous conduct, the Father kept shooting himself in his litigious feet. He cared nothing about the regular self-infliction of wounds. More troublingly still was his abject refusal to see how his conduct prejudiced his case, purportedly to assist X. Ultimately, X was the loser of the Father’s aberrant and flagrantly inappropriate conduct.
None of this will register with the Father because he is so prejudiced and blinkered in his views, and completely certain of the accuracy of them. I need only observe that if a Mother in similar proceedings had acted in the same way as the Father has done in these proceedings, the result would have been the same, but in that Father’s favour. The adverse comments made here against the Father would have been similarly made if any Mother had so acted in other litigation.
Contrary to the Father’s firm but nonetheless totally awry views, “gender” has nothing to do with the Orders now made in X’s best interests. To state what should be obvious now, and what was also obvious in 1976 (doubtless to the Father’s chagrin), Goldstein J recorded the following in In the Marriage of Kress:[130]
Given the overriding consideration of the welfare of the child, the Court must consider the conduct of the parents, not with a view to rewarding one or punishing the other, but to ascertain from such conduct whether the welfare of the child will be better served in the [primary] custody of one or the other.
[130] In the Marriage of Kress (1976) 13 ALR 309 at 319. Accepting the rather different statutory regime that now applies, this decision of Goldstein J was referred to with approval by Altobelli J in Fielding and Mason (No.2) [2021] FamCA 350 at [145].
Finally, as noted multiple times already, the Father’s outrageous and offensive conduct was primarily a protest. It was always going to be futile, which he recognised. But protest, nonetheless, he did – volubly, cantankerously, contemptuously. While he referred to X, his focus was really not on his son but on (in his view) the wretched family law system. Accordingly, the Father’s focus was always skewed, but tragically for X, deliberately and mindlessly so.
What was no less troubling was the Father’s refusal to acknowledge that Courts can only do what they are set up to do – to quell disputes. The Father’s constant objection was that family law Courts did not, and do not, “follow up” litigants and the children in particular once everyone has been through “the system.” He did acknowledge that the Court does not “break up parents” for the simple reason that the relationship between litigants has already “broken up” by the time it comes to Court. The Court deals with the issues in dispute as the parties present them. It is the responsibility of the parties to highlight the issues in contest and for the Court to deal with them. Likewise, the parties, usually but obviously not always, take responsibility for seeking professional assistance for themselves and their children from social workers, psychologists and the like, during and after a hearing and Orders are made.
In the Father’s view, it is this alleged lack of “follow up” that is the cause, or a principal one, of the failed family law system. Like many things, unfortunately, the Father never explained why it was the Courts’ responsibility to “follow up” the effect of its Orders, or for how many years it should do so. Likewise he never addressed how or why the parents did not have primary responsibility to ensure that their children were properly supported after the Court made its Orders.
However obvious these matters are, or should be, the Father showed almost no insight about the potential impact of his conduct on the litigation, on the Court, on the Mother, on X’s counsellor, and most particularly, on X himself. He chose to act poorly. No system, no “gender”, and nobody else, forced him to act so poorly, so aggressively, so unjustifiably. How and why he thought that abuse, vitriol, offensive and disruptive conduct, and all else, would advance his cause – however he might define it – but most particularly how it might, or could, assist X, was a complete but very sad mystery. There is nothing in his conduct, or in his submissions, that can or should be accepted or emulated, and everything that should be denied and avoided. Most regrettably, it is the Father and X who are the negative beneficiaries of the Father’s untrammelled frustration and rage.
There is no doubt that the Father cares and thinks about X. Regrettably, his actions (and no one else’s) during the litigation speak otherwise. He saw the litigation – which he initiated several times – as an exercise in futility because of its pre-determined result. But it was his bizarre, almost nihilistic, conduct – most particularly his lack of insight into the potential impact upon X (and the Mother) of his ongoing and dysfunctional belligerence – which ensured the outcome he predicted. Moreover, sadly and really quite damagingly to his case, during the litigation in recent years, the Father was plainly unable to subordinate his own grievances to X’s best interests.
I certify that the preceding two hundred and fifty (250) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 13 September 2022
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