Nalder & Cato & Nalder - [2024] FedCFamC2F 721

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nalder & Cato & Nalder [2024] FedCFamC2F 721

File number(s): ADC 3539 of 2021

Judgment of: JUDGE PARKER

Date of judgment: 6 June 2024

Catchwords:
FAMILY LAW – PARENTING – allegations of emotional manipulation of children and ‘pathogenic parenting’ by Mother – where Mother found not to pose an unacceptable risk to children

FAMILY LAW – PARENTING – unacceptable risk – where the Father conducted himself throughout the proceedings in a manner which was abusive, threatening and intimidating towards the Mother, the Mother’s legal representatives, the Independent Children’s Lawyer and the Court – where the Father subjected the Mother to coercive and controlling violence – where the Father refused to comply with an order for a psychiatric assessment – where the Father poses an unacceptable risk to the children – no time or communication ordered between Father and children

FAMILY LAW – PARENTING – application by paternal grandparents – where children refused to spend time with grandparents at contact centre – where grandparents declined to pursue reunification therapy – where there is a risk that time with grandparents would result in exposure to Father – where paternal grandparents found to be unlikely to shield children from hostility towards Mother – no time or communication ordered between paternal grandparents and children

FAMILY LAW – PRACTICE AND PROCEDURE - Where an order made pursuant to section 102NA of the Family Law Act 1975 (Cth) applies and the Father refused to avail himself of legal representation through the Family Violence and Cross-Examination of Parties Scheme – where Mother’s evidence is largely unchallenged and is accepted

Legislation:
Evidence Act 1995 (Cth) ss 79, 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65DAA, 69ZN, 69ZX, 102NA

Family Law Amendment Act 2023 (Cth) s 12(b)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 8.15(3)(e)

Cases cited:
A & A [1998] FamCA 25; (1998) FLC ¶92-800

Agapis v Birmingham DCJ [2013] WASC 329

Akston & Boyle [2010] FamCAFC 56; (2010) FLC ¶93-436

B & B (Access) [1986] FamCA 52; (1986) FLC ¶91-758

B & B [1993] FamCA 143; (1993) FLC ¶92-357

Bain & Bain (Deceased) [2017] FamCAFC 80; (2017) FLC ¶93-772

Bant & Clayton [2019] FamCAFC 198; (2019) FLC ¶93-924

Bielen & Kozma [2022] FedCFamC1A 221

Blinko & Blinko [2015] FamCAFC 146

Bradley v The Crown [2020] QCA 252

Brown & Pederson [1989] FamCA 8

Browne v Dunn (1893) 6 R 67 HL

Carter & Wilson [2023] FedCFamC1A 9; (2023) FLC ¶94-129

Champness & Hanson [2009] FamCAFC 96; (2009) FLC ¶93-407

Cotton & Cotton [1983] FamCA 18; (1983) FLC ¶91-330

Cubbin & Cutler [2018] FamCAFC 84

Dennison & Wang [2010] FamCAFC 182

DL & W [2012] FamCAFC 5; (2012) FLC ¶93-496

Ellis v Wallsend District Hospital (1989) 17 NSWLR

Friscioni & Friscioni [2010] FamCAFC 108

Grier & Grier [2023] FedCFamC1A 32; (2023) FLC ¶94-135

Hall & Hall [1979] FamCA 73; (1979) FLC ¶90-713

Harridge & Harridge [2010] FamCA 445

Irish & Michelle [2009] FamCA 66

Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092

Jacks & Sampson [2008] FamCAFC 173; (2008) FLC ¶93-387

Jardein Pty Ltd v Stathakis [2007] FCAFC 148

L & T [1999] FamCA 1699; (1999) FLC ¶92-875

Lambert & Lambert [2002] FamCA 537

LC & TC [1998] FamCA 47; (1998) FLC ¶92-803

Leone & Cino [2016] FamCAFC 224; (2016) FLC ¶93-744

Lorreck & Watts [2012] FamCAFC 75

M & M [1988] HCA 68; (1988) 166 CLR 69

Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305

Maluka & Maluka [2011] FamCAFC 72; (2011) FLC ¶93-464

Mazorski & Albright [2007] FamCA 52

McCall & Clark [2009] FamCAFC 92; (2009) FLC ¶93-405

Meads v Meads (2012) 543 AR 215

Moose & Moose [2008] FamCAFC 108; (2008) FLC ¶93-375

Muldoon & Carlyle [2012] FamCAFC 135; (2012) FLC ¶93-513

Mulvany & Lane [2009] FamCAFC 76; (2009) FLC ¶93-404

Murray v Pinder [2020] QSC 385

MWJ v The Queen [2005] HCA 74

N & S & The Separate Representative [1995] FamCA 139; (1996) FLC ¶92-655

Napier & Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303

Napoli & Napoli [2004] FamCA 706

Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC ¶94-017

Palmer v No Respondent [2023] VSCA 322

Pascoe & O’Keefe and Ors [2018] FamCAFC 243

Planck & Planck [2024] FedCFamC1F 341

R v Sweet [2021] QDC 216

Re Magistrate M M Flynn; ex parte McJannett [2013] WASC 372

Rossiter v Adelaide City Council [2020] SASC 61

Scordo v Commonwealth Bank of Australia [2024] FCA 359

Scott & Scott [1994] FamCA 12; (1994) FLC ¶92-457

Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219

Sigley & Evor [2011] FamCAFC 22

Slater & Light [2013] FamCAFC 4

Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038

Tindall & Saldo [2015] FamCAFC 1

Treloar & Nepean [2009] FamCAFC 206; (2009) FLC ¶93-417

Vasser & Taylor-Black [2007] FamCA 547; (2007) FLC ¶93-329

VC & GC & Ors [2010] FamCAFC 62; (2010) FLC ¶93-434

Vigano & Desmond [2012] FamCAFC 79; (2012) FLC ¶93-509

Division: Division 2 Family Law

Number of paragraphs: 335

Date of last submission/s: 27 May 2024

Date of hearing: 29 May-2 June 2023, 27 May 2024

Place: Adelaide

Counsel for the Applicant: Self Represented

Counsel for the First Respondent: Ms Boyle

Solicitor for the First Respondent: Adelta Legal

Counsel for the Second Respondents: Self Represented

Counsel for the Independent Children's Lawyer: Mr Praolini

Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia
ORDERS

ADC 3539 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NALDER

Applicant

AND:
MS CATO

First Respondent

MR B NALDER AND MS C NALDER

Second Respondents

AND:
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE PARKER

DATE OF ORDER:

6 JUNE 2024

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Mother have sole parental responsibility for the children X born in 2013 and Y born in 2017 (‘the children’).
3.The children live with the Mother.
4.The Father and the Paternal Grandparents be at liberty to send each of the children a letter, card and/or gift for the purposes of Christmas and to each child on their respective birthdays on the following basis:
(a)Within 14 days of the making of this order, the Mother shall provide to the Father and the Paternal Grandparents in writing directly or via her solicitor an address to which the Father be permitted to send such correspondence and she shall forthwith notify the Father and the Paternal Grandparents by email of any change to such address;
(b)The letter, card or gift sent by the Father and/or the Paternal Grandparents shall be age appropriate, child-focused, and shall not in any way detail these proceedings or any dispute between the parties or denigrate the Mother or any other person;
(c)The Mother shall be permitted to open any letter, card or gift sent by the Father and/or the Paternal Grandparents to the children and shall, in her sole discretion, be at liberty to determine whether the letter, card or gift complies with paragraph 4(b) hereof;
(d)In the event that the Mother considers that the letter, card or gift complies with paragraph 4(b) hereof, then the Mother shall facilitate the children receiving the gift and shall encourage the child or children to respond to the Father and/or the Paternal Grandparents in writing to acknowledge receipt of, and thank him or them for, the said letter, card or gift.

5.The children otherwise spend no time and have no communication with the Father or the Paternal Grandparents.
6.The Father be at liberty to obtain, at his sole expense, copies of the children’s school reports, photographs and other documents ordinarily provided to parents by the children’s school.
7.The Mother shall notify the Father and the Paternal Grandparents by email as soon as practicable in the event that either of the children suffers a serious illness or injury.
8.All parties be restrained and an injunction is hereby granted restraining them from:
(a)Abusing, denigrating, criticising or rebuking any other party to these proceedings in the presence or hearing of the children, or from allowing any other person to do so; and
(b)Discussing these proceedings, or any allegation made in these proceedings, with the children, or from allowing any other person to do so SAVE AND EXCEPT to inform the children of their care arrangements arising from these proceedings.

9.The appointment of the Independent Children’s Lawyer is hereby discharged.
10.All extant applications are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE PARKER:
INTRODUCTION

The applications before the Court are competing parenting applications in relation to the children X born in 2013, who is aged 10, and Y born in 2017, who is aged 6 (collectively ‘the children’).
The Applicant Father, MR NALDER (‘the Father’) was born in 1984 and is aged 40. The First Respondent Mother, MS CATO (‘the Mother’), was born in 1988 and is aged 35. The Second Respondent paternal grandparents, MR B NALDER and MS C NALDER (‘the paternal grandparents’) were born in 1962 and are aged 62 and 61 respectively.
The Mother and the Father (collectively ‘the parents’) commenced a relationship in approximately 2012. There is a dispute between them as to whether they lived together. For reasons outlined later in these reasons, I accept the Mother’s evidence that the parents did not formally reside together, though I accept that they frequently spent time staying together in each other’s homes. It is apparent from the evidence of both parents that the Mother was the children’s primary caregiver from their births. The Father acknowledged to the family report writer, Ms D, that times where he spent time alone with the children prior to separation had been ‘few and far between.’
The parents separated on or around 24 December 2020. The children remained in the care of the Mother. It is common ground that in the period of approximately three and a half years since the parents separated, the children have spent no time with the Father. They have spent time with the paternal grandparents on only one occasion, being a visit at a shopping centre in February 2021 which was arranged by agreement between the Mother and the paternal grandparents. At the time of the trial, the children remained residing with the Mother. The maternal grandmother also resides with them.
The Father commenced the present proceedings on 24 July 2021. The paternal grandparents brought a separate application in which the Mother was named as the respondent on 13 September 2021. The proceedings were consolidated by way of order made on 29 November 2021.
Interim orders were made by a Senior Judicial Registrar on 14 April 2022 (‘the interim orders’). Those orders provided, amongst other things, for the children to live with the Mother, for the parties to register with a supervised contact centre (‘the Contact Centre’), and for the Father and the paternal grandparents to spend six sessions of supervised time with the children, with reports to be obtained from the Contact Centre. The interim orders also provided for the Mother and the Father to attend upon Dr F, psychiatrist, for the purpose of a psychiatric assessment. The parents were also ordered to undertake the ‘Kids Are First’ post-separation parenting program.
The supervised time between the Father and the children provided for in the interim orders did not proceed. Visits between the children and the paternal grandparents were scheduled but did not progress to face-to-face time. The circumstances surrounding these developments are considered later in these reasons.
The Father and the paternal grandparents represented themselves at the trial. At the commencement of the trial, they were offered the opportunity to speak with a duty lawyer. They declined. Each of the self-represented parties was provided with copies of sections 60B, 60CA, 60CC, 61DA, 64B, 65DAA of the Family Law Act 1975 (Cth) (‘the Act’) prior to the trial and an explanation of the trial process at the commencement of the trial.
At the commencement of the third day of the trial, at which time the paternal grandfather was partway through his cross-examination of the Mother, the paternal grandparents made an application for an adjournment. The application was opposed by the Mother and the Independent Children’s Lawyer and was supported by the Father. The basis of the application was that they did not consider the hearing was ‘going well’ or that it would be a ‘fair hearing’ and they wanted to obtain legal advice. I was not satisfied that it would be in the interests of justice to grant the adjournment, and for reasons given ex tempore at the time, the adjournment application was refused. The Father sought to speak with the duty lawyer and was given the opportunity to do so.
THE PARTIES’ APPLICATIONS
The Father sought that the children be removed from the Mother and be placed in his full time care until such time as the Mother had ‘her mental health issues addressed’, following which, upon the recommendation of a ‘pathogenic parenting specialist’, they would resume their relationship with the Mother ‘up to a maximum of 50/50 shared care.’ He sought that the maternal grandmother (who was not a party to the proceedings) undertake the same treatment, and that the Mother and the maternal grandmother fund the treatment, unless more intensive treatment was required, which treatment he proposed should be funded by the Court. The Father sought that he have sole parental responsibility until such time as the Mother was ‘mentally fit enough to have such discussions and attend to such responsibilities.’ He also sought that the Mother be subjected to quarterly ‘home hygiene inspections.’
Upon being asked to prepare a minute setting out an alternative proposal as to the orders he sought if his primary position as to the children’s living arrangements was not accepted, the Father simply threatened to take various actions if he did not get what he wanted, including making allegations of ‘injustices and crimes’ public and contacting politicians. In the witness box, he indicated that his alternative proposal was an equal time arrangement.
In addition to the orders outlined above, the Father sought a suite of orders which were beyond the power of the Court. These included orders providing that the Mother’s solicitors and the Independent Children’s Lawyer be ‘disbarred for life’ or that the Chief Judge of the Court issue a media statement explaining why that should not occur; that the Mother’s solicitors be required to donate funds to a nominated foundation; that the Court pay compensation to the Father; that the Chief Judge of the Court have a face to face meeting with the Father; and that the Court provide various documents to the Father.
The Father was informed at a mention on 23 May 2023 and again at the commencement of the trial that many of the orders he sought were beyond the power of the Court. It was also explained to him that the nature of the proceeding was not a broad enquiry into his grievances and allegations, that the trial would be directed to determination of the orders that would meet the children’s best interests, and that evidence would only be considered to the extent that it was relevant to that determination. Consistently with that indication, I have limited my consideration in these reasons to matters pertaining to and ancillary to the determination of the orders which will best serve the interests of the children.
Although she had initially proposed that the children spend time with the Father commencing with supervised time and then building to alternate weekends in accordance with their comfort and safety, the Mother ultimately sought that the children live with her, that she have sole parental responsibility, and that the children spend no time with the Father. The Mother’s position was largely based on the ‘oppositional, defiant and demanding’ behaviour exhibited by the Father during the course of the proceedings and the abuse and harassment to which he had subjected the Mother, her solicitors, the Independent Children’s Lawyer and the Court. The Father’s conduct in this regard is considered later in these reasons.
The Mother proposed that the Father be at liberty to send birthday and Christmas gifts, letters and cards, subject to her confirming that their contents were appropriate. She did not oppose the Father being provided with the children’s school reports, photographs and other documents ordinarily provided to parents.
The Mother also opposed the paternal grandparents spending time with the children. This opposition was based on a combination of factors, including the lack of success that had been experienced when supervised time was attempted at the Contact Centre (as discussed later in these reasons), their failure to distance themselves from or show any insight into the detrimental impacts on the children of the Father’s abusive and harassing conduct (which is also discussed later in these reasons), a concern that the paternal grandparents would be unwilling or unable to shield the children from their negative views of the Mother, and a fear that they would allow their son to come into contact with the children if they were to spend time with them. The Mother did not oppose an order providing for the paternal grandparents to be able to send Christmas and birthday letters, gifts and cards to the children, again on the proviso of her satisfaction that their contents were appropriate.
The paternal grandparents sought that in the event that the children remained living with the Mother, they spend time with them on one Saturday or Sunday each fortnight (to be extended to both Saturday and Sunday on one occasion during each during school holiday period), with additional time on special occasions. They handed up a minute of orders sought at the commencement of the trial, in which they sought that the regular fortnightly time commence at 11am and extend ‘as long as possible’ with the intention of transitioning to overnight time.
The paternal grandparents additionally sought liberty to communicate with the children by telephone, and for the children to be able to spend time with any of their family members or friends during their time with them, and communicate by telephone with other family members. In addition, the paternal grandparents sought orders permitting them to receive copies of school reports and photographs, notification and the ability to visit if either of the children were hospitalised, and liberty to attend any extra-curricular activities in which the children are involved.
The Independent Children’s Lawyer supported the Mother’s position with respect to parental responsibility, the children’s living arrangements, and the arrangements for them to spend time with the Father. The Independent Children’s Lawyer did not support the making of any order providing for the children to spend time or communicate with the paternal grandparents. The Independent Children’s Lawyer did support orders providing for the Father and the paternal grandparents to be able to send letters, gifts and cards to the children as proposed by the Mother.

In addition, the Independent Children’s Lawyer sought an order requiring the Mother to (in summary) consult with her treating psychologist or general practitioner and follow all reasonable recommendations of such practitioner with respect to management of her mental health. The Independent Children’s Lawyer also sought injunctions restraining the parties from (in summary) denigrating each other or discussing the proceedings or any allegation made in the proceedings in the presence or hearing of the children. None of the parties opposed the making of such an order.
In the event that time was ordered between the paternal grandparents and the children, the Independent Children’s Lawyer sought that an injunction be granted restraining the parental grandparents from causing or allowing the children to communicate or spend time with the Father, or allowing any other person to do so.
VALIDITY OF THE COURT AND THE FAMILY LAW ACT
The Father alleged in the material he filed for the purposes of the trial that the Court was not a valid court but rather a ‘corporation impersonating a Commonwealth Court’ and a ‘corporation of financial extortion’ with ‘no legal standing.’ He also asserted that the Act was not valid and was merely an ‘expired Bill.’ His arguments in this regard relied heavily on rhetoric that can best be described as pseudolegal in nature. This was a feature of the manner in which the Father presented his case throughout the trial.
At the commencement of the trial, I pointed out to the Father that he was the Applicant and that it had been he who had invoked the jurisdiction of the Court. I told him that if he sought to proceed with his application, the proceedings would be conducted on the basis that the Court was a valid court and the Act had been validly enacted. I offered the Father the opportunity to withdraw his application if he did not wish to proceed on that basis. He elected to proceed.
In any event, as McKechnie J of the Supreme Court of Western Australia held in Re Magistrate M M Flynn; ex parte McJannett:[1]
…judges administer justice according to law. They are not required to expend judicial time, a scarce public resource, on applications that have no legal foundation and involve a deluded understanding of the law.
[1] [2013] WASC 372 at [15].
Numerous other authorities have confirmed that courts are not required to expend their finite resources on examining and determining challenges based on pseudolegal concepts or ancient or irrelevant laws or to prove their legitimacy or authority to litigants who challenge that authority without proper foundation.[2] Where, as here, there is no proper basis proffered for a challenge to the legitimacy either of the Court or of the legislation which it administers, it is not necessary to consider these matters further.
[2] See, for example, Agapis v Birmingham DCJ [2013] WASC 329; Leone & Cino [2016] FamCAFC 224; (2016) FLC ¶93-744; Bradley v The Crown [2020] QCA 252; Rossiter v Adelaide City Council [2020] SASC 61; Murray v Pinder [2020] QSC 385; R v Sweet [2021] QDC 216; Palmer v No Respondent [2023] VSCA 322; Scordo v Commonwealth Bank of Australia [2024] FCA 359; Planck & Planck [2024] FedCFamC1F 341; and in the Canadian context, Meads v Meads (2012) 543 AR 215.
THE PARTIES AND THEIR EVIDENCE
The Father relied upon a trial affidavit filed on 22 May 2023 and an affidavit in reply to the Mother’s affidavit filed on 29 May 2023, being the first day of the trial. Although his case outline document listed a suite of other documents that had been filed throughout the proceedings (including documents filed on behalf of the Mother), orders made on 12 August 2022 had provided that reliance on earlier filed affidavits was not permitted, and his trial affidavit and affidavit in reply were the only documents he filed in accordance with the trial directions. I confirmed with the Father at the commencement of the hearing the documents he relied upon. He did not seek to rely on any additional affidavits but indicated that he sought to rely on annexures to past affidavits. He was advised that although, in accordance with the trial directions, reliance on earlier filed affidavits would not be permitted, he could tender documents that had been annexed to previous affidavits.
The Father was cross-examined by Counsel for the Mother and Counsel for the Independent Children’s Lawyer. The paternal grandparents did not wish to cross-examine the Father. The Father gave his evidence in an argumentative fashion which involved frequent angry outbursts. The manner in which he gave his evidence demonstrated poor impulse control and an inability to control his emotions. He frequently answered questions with questions and made speeches about matters other than the children’s best interests. From time to time he burst into laughter, even when discussing extremely serious issues such as the alleged emotional abuse of his children.
There were aspects of the Father’s evidence that were lacking in credibility. For example, he denied having recorded any of the earlier hearings in the proceedings, which had been conducted via Microsoft Teams, despite the fact that his trial affidavit contained what were clearly transcripts of those hearings prepared by him. Those transcripts were styled in places as transcripts, and included comments such as ‘alright, well’, ‘um ahh’ and ‘your [sic] muted [Mr Nalder].’ The Father initially evaded the question of whether what he had included in his affidavit was a transcript by saying ‘your words, not mine.’ He then denied having made recordings of the hearings and gave evidence that he simply had ‘a good memory’ and had provided ‘a summary’ of the contents of the hearings. This evidence strained credulity and cannot be accepted.
Another example of evidence given by the Father that was lacking in credibility related to whether he and the Mother had lived together. His evidence that they had lived together from 2013 until late 2018 was directly contradicted by a Centrelink statement which, it was common ground, his mother had signed in mid-2018, stating that he lived with his parents and the Mother and the children lived separately. Furthermore, although his trial affidavit said that the Mother and children moved into a house he built in 2018, an email he sent to the Mother’s solicitor on 10 June 2021 confirmed that she ‘never moved in.’ When confronted with this inconsistency in cross-examination, he said ‘she didn’t stay there every night of the week’, which was consistent with the Mother’s evidence. The Father tendered telephone records[3] which covered only a very brief period of time in mid-2015 and from which it was not possible to glean anything about the distinction between his evidence that the parents lived together and the Mother’s evidence that they spent time together.
[3] Exhibit F6.
In addition to occasions upon which his evidence was untruthful, much of the evidence given by the Father was otherwise unreliable as a result of a tendency on his part to make broad and often outlandish statements without regard to their accuracy, and to misquote and misrepresent statements made by others. Examples of this are considered throughout these reasons.
The Father was frequently evasive and often failed to answer the questions put to him, instead embarking on lengthy monologues focused on his grievances with the legal system and his allegations of corruption, which are considered in greater detail later in these reasons. The Father frequently needed to be directed to answer the questions that had been put to him.
As a result of these considerable difficulties with the Father’s evidence, I do not accept his evidence other than where it relates to uncontentious issues or where it is supported by independent evidence.
The Mother relied upon a trial affidavit filed on 22 May 2023. She was cross-examined by the paternal grandfather and by Counsel for the Independent Children’s Lawyer. For reasons discussed later in these reasons, the Mother was not cross-examined by the Father. The Mother gave her evidence in a calm and straightforward manner. She remained polite, notwithstanding the difficulty of being cross-examined by the paternal grandfather, with whom she shares a strained relationship and whose approach towards her could best be described as hostile. Her evidence was generally child-focused. She impressed as worn down by the manner in which the proceedings had been conducted by the Father, which is considered in greater detail later in these reasons. She presented as a credible witness.
The paternal grandparents relied upon a jointly sworn affidavit filed on 1 May 2023. Like the Father, contrary to the orders of 12 August 2022, the paternal grandparents listed a number of earlier filed documents in their case outline document, including an affidavit filed by the Mother, but when confirmation as to the documents relied upon was sought at the commencement of the trial, they sought only to rely upon their trial affidavit. Save as outlined later in these reasons, they did not seek leave to rely on any documents other than their jointly sworn trial affidavit, being the only document filed in accordance with the trial directions. Each of the paternal grandparents gave evidence and was cross-examined by Counsel for both the Mother and the Independent Children’s Lawyer. The Father did not wish to cross-examine the paternal grandparents.
The paternal grandfather was not a reliable witness. This manifested itself in a number of respects. One example of this was that upon entering the witness box, he confirmed under oath that the contents of the jointly sworn affidavit were true and correct. However, under cross‑examination, he admitted that he had not read the affidavit, was unaware of its contents and had ‘just signed the forms.’ He had plainly sworn the affidavit and given the evidence in the witness box without any regard to whether the evidence was true or not. When this was drawn to his attention, he changed his evidence to say ‘I imagine I read it’ and ‘I’m sure I would have read it.’
The paternal grandfather also gave oral evidence in which he mistakenly referred to the Mother by the name of a relative. He did not correct the slip or appear to have noticed it when it occurred, but corrected it at a later time after the matter had been stood down. He was asked whether his wife or son had drawn his attention to the error during the break and flatly denied that they had done so. He said that he had ‘thought about what [he] said for that question and it occurred to [him].’ The paternal grandmother subsequently admitted that she had drawn the error to the paternal grandfather’s attention.
Like the Father, the paternal grandfather frequently needed to be reminded of his obligation to answer the questions that were put to him rather than veering into speeches about his views.
The paternal grandfather’s evidence was also unreliable for a further reason, which was that his memory was very poor. For example, despite the significance of the family report to the case, his evidence was that he did not remember having attended the family report interviews, which had taken place less than four months earlier, and did not remember whether he had read the family report or not. It was plain from his evidence that he did not remember that the author of the report had been female.
The paternal grandfather’s willingness to give untruthful evidence, his cavalier attitude towards the need to ensure that the evidence he gave was accurate and the difficulties with his memory meant that I must approach his evidence with considerable caution except where it is independently verified.
The paternal grandmother presented as a witness who generally endeavoured to give truthful evidence and to answer the questions asked of her. She made some appropriate concessions. However, the paternal grandmother impressed as being under significant pressure to conform to the wishes and expectations of her son and her husband, in whose presence her evidence was given. She also minimised issues that did not assist her case or that of her son and exaggerated factors that she considered favoured their cases.
The manner in which the Father, in particular, conducted himself throughout the proceedings and particularly during the trial, necessitated active judicial control, management and direction of the type envisaged by sections 69ZN and 69ZX of the Act.
The trial of this matter was adjourned part-heard after five hearing days because the Father indicated that he wished to cross-examine the single expert psychiatrist but had not provided any notice of that intention and the witness was not available on short notice. There were a number of delays in the trial being resumed as a result of circumstances affecting the Court which were outside the control of the parties and the subsequent need to align the further listing of the matter with the availability of the single expert family report writer to give evidence. Ultimately a period of approximately 11 months passed between the commencement of the trial and its conclusion. The passages in these reasons with respect to my observations of each of the parties and their evidence were based on detailed contemporaneous notes and were drafted almost immediately following the giving of the evidence in question. Those observations were therefore unaffected by the passage of time between the commencement of the trial and the delivery of these reasons.
In accordance with section 140 of the Evidence Act 1995 (Cth), all findings of fact in this judgment are made on the balance of probabilities. This standard, however, is ‘not the measure by which an unacceptable risk of harm is to be assessed,’[4] and it has not been applied to my consideration of issues of unacceptable risk.
[4] Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092.
The operation of rule 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) was dispensed with and the annexures to the affidavits filed by each of the parties were accepted into evidence. Each of the parties also tendered documents throughout the course of the trial. Although each and every aspect of the evidence relied upon by the parties has not been referred to in these reasons, I have had regard to the totality of the evidence before the Court and the submissions of each of the parties.
THE MOTHER’S UNCHALLENGED EVIDENCE
An order was made pursuant to section 102NA of the Act on 12 August 2022, the result of which was that the Mother and the Father were prevented from personally cross-examining one another. I explained to the Father when the order was made on 12 August 2022,[5] and again at a mention on 23 May 2023, that the consequence of failing to challenge the evidence of a witness in cross-examination was that there was a very high probability that the evidence would be accepted, and that it was up to him to challenge, through cross-examination, any evidence that he did not want the Court to accept. The Father was also reminded of the importance of obtaining legal representation by way of an email from the Court dated 13 April 2023. At the mention on 23 May 2023, I warned the Father that he would be entering the trial at a significant disadvantage if he did not have legal representation and asked him whether he was sure he wanted to proceed with the trial in circumstances in which he would not be able to cross‑examine the Mother.
[5] As confirmed at paragraph [78] of the Father’s trial affidavit.
Notwithstanding these repeated warnings and opportunities, the Father declined to access the legal representation to which he was entitled through the Family Violence and Cross‑Examination of Parties Scheme and chose instead to represent himself at trial. He expressed a view at the mention on 23 May 2023 that he did not need to cross-examine the Mother because ‘if it’s in the children’s best interests, it can only go one way.’ The Father also alleged that if he were to engage a lawyer, he would have been ‘subject to 12 presumptions of law to meet the ulterior motive’ of the Court. It is not clear what the Father meant by this and he was later unable or unwilling to explain it under cross-examination, though he claimed to have ‘confirmed it with a lawyer.’ He also alleged that the section 102NA order had been made based on ‘no evidence’ and ‘sexual discrimination,’ despite the fact that his own evidence included allegations of family violence.
At the commencement of the trial (by which time he had received the Independent Children’s Lawyer’s case outline, which spelled out very clearly the consequences sought by the Independent Children’s Lawyer as a result of the Father’s failure to cross-examine the Mother), the Father was offered the opportunity to seek an adjournment for the purpose of obtaining legal representation for the trial. He declined to do so.
During the first day of the trial, it became clear that the trial would need to be adjourned part‑heard for a number of months because the Father had indicated that he wished to cross‑examine Dr F, but he had not put him on notice and Dr F was not available during the days allocated for the trial. I suggested to the Father that consideration could be given to delaying the Mother’s case until the trial resumed to give him a final opportunity to obtain legal representation. He declined.
When the Father supported the paternal grandparents’ application for an adjournment made on the third day of the trial, as referred to earlier in these reasons, he indicated that if the matter was adjourned, he would ‘possibly’ obtain legal representation for the purpose of cross‑examination of the Mother, but the basis he gave for supporting the adjournment application was that he had been cross-examined on matters he had not anticipated. By that time, the Mother was already under cross-examination by the paternal grandfather.
As a result of the Father’s insistence on representing himself, the Mother’s evidence was, to a significant extent, unchallenged. Although the Court is not bound to accept evidence simply because it is unchallenged, a number of authorities have established that it may be ‘wrong, unreasonable or perverse to reject unchallenged evidence,’[6] and unchallenged evidence should be accepted if it is not inherently improbable or incredible.[7] The Mother’s evidence was neither inherently improbable nor incredible.
[6] Ellis v Wallsend District Hospital (1989) 17 NSWLR; Scott & Scott [1994] FamCA 12; (1994) FLC ¶92-457; Tindall & Saldo [2015] FamCAFC 1.
[7] Bain & Bain (Deceased) [2017] FamCAFC 80; (2017) FLC ¶93-772.
As a result of these matters, in combination with my impression of the Mother as a witness, I accept the evidence given by the Mother unless otherwise specified.
THE RULE IN BROWNE V DUNN
There is an established common law rule of fairness, usually referred to as the rule in Browne v Dunn.[8] In MWJ v The Queen,[9] Gummow, Kirby and Callinan JJ said:
…The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct in a particular case, or a person or a witness’s credit.
[8] (1893) 6 R 67 HL.
[9] [2005] HCA 74 at [38].
The rule in Browne v Dunn continues to operate under the Evidence Act.[10] In Seymour v Australian Broadcasting Commission,[11] Mahoney JA said:
Browne v Dunn provides an illustration of the principle that a trial must be conducted fairly and so as not to defeat its purpose as a means of ascertaining where, in the case as developed by the two parties, the truth lies. If a trial is not so conducted, it may be held to have miscarried. Whether a trial has miscarried will depend upon all of the circumstances of the case. The matter is one of impression and it is in this sense that, in such cases, the grant of a new trial is said to be discretionary: a new trial will be granted on the ground of miscarriage of justice when the Court is satisfied that, for whatever reason and after balancing up all relevant factors, justice requires that there be a retrial. Browne v Dunn provides an illustration of one of the ways in which a trial may miscarry. Where, in a civil case, a witness is not cross-examined, it may normally be assumed that the evidence of that witness is not in contest. Therefore, as was there decided, in such a case a party who has not cross-examined a witness will not normally be entitled to submit in address that the witness's evidence should not be accepted. But the circumstances of the particular case may negative such an assumption. Whether it is right to make such an assumption will depend upon, for example, whether counsel has at the time, given an adequate reason for not cross-examining the witness or otherwise made it clear that it is not a proper case in which to make that assumption… It may be that the witness's evidence is fanciful or such as not to warrant cross-examination… or that cross-examination is foregone for other adequate reasons, for example, delicacy: …. Similarly, failure to cross-examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that his evidence will be contested. … The nature of the defendant's case and the particulars given, and otherwise the conduct of it may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter (citations omitted).
[10] Jardein Pty Ltd v Stathakis [2007] FCAFC 148 at [33].
[11] (1977) 19 NSWLR 219 at 235-6; cited in Jacks & Sampson [2008] FamCAFC 173; (2008) FLC ¶93-387.

In LC & TC,[12] the Full Court of the Family Court held:
it must be said that the rule in Browne v Dunn does not apply where the witness is on notice that the witness's version of events is in contest. That notice may come from the pleadings or the other side's evidence or the other side's opening; it may even come from the general manner in which the case is conducted. In general, however, this exception to the rule should only operate where the issue is a fairly clear and obvious one (citations omitted).
[12] [1998] FamCA 47; (1998) FLC ¶92-803 at [38].
Counsel for the Independent Children’s Lawyer submitted that as a result of the operation of the rule in Browne v Dunn, in circumstances where the Mother was not cross-examined by the Father, the allegations made by the Father against the Mother, to the extent to which they were disputed, must be disregarded. In circumstances in which the Father’s evidence was filed before that of the Mother, and the Mother gave oral evidence having heard the evidence that had been given by the Father, I am satisfied that the Mother was on notice of the imputations made against her by the Father and had the opportunity to respond. As such, I do not propose to disregard the Father’s allegations against the Mother in a wholesale manner as a result of the operation of the rule in Browne v Dunn.
THE FATHER’S ALLEGATIONS OF CONSPIRACY AND CORRUPTION
The Father’s evidence, both in his affidavit material and in the witness box, and his submissions, were replete with allegations of conspiracy, corruption and sexual discrimination. These allegations were levelled at the Court and most of the legal and other professionals who had had involvement in the case. The Father’s allegations included (but were not limited to) the following:
(a)That both the Court and a duty lawyer from the Family Advocacy and Support Service (FASS) had encouraged him to obtain legal representation because ‘the court and its members cannot do under the table deals if [he was] self-represented therefore making it more difficult to steal the children in final orders.’
(b)That FASS had ‘covertly communicated’ with the Court, an allegation which was based on the fact that both FASS and the Court had told him he should obtain a barrister, which he refused to accept could be explained by the fact that FASS simply considered that it was a good idea to do so.
(c)That the Court had an ‘ulterior motive’ driven by a ‘secret oath’ to remove children from fathers and extort people, and was a ‘stakeholder’ in the Bar and ‘colluding with lawyers’ to steal children for financial gain.
(d)That the Court had committed ‘injustices and human rights crimes and abuses against fathers and children of Australia’, ‘corruption, financial extortion, inhumane barbaric treatment including psychological torture of fathers and abuse of children’, and had implemented a ‘child stealing program.’
(e)That the Mother’s solicitors had contravened the applicable solicitors’ conduct rules in a number of respects including by continuing to act for her in the face of what the Father alleged was a mental health condition suffered by her. In this regard, the Father asserted, incorrectly, that ‘it is a condition that when you take on a client you get their mental health assessed.’ He also appeared to be under the misapprehension that the Mother’s lawyers had been under some kind of obligation to accept at face value his allegations as to the Mother’s mental health and withdraw from acting for her as a consequence. They were under no such obligation.
(f)That the Mother’s solicitors had engaged in ‘sexual harassment’, ‘sexual discrimination’, ‘perverting the course of justice’ and following ‘lawyers’ secret oaths’, a conclusion apparently based on their failure to share his view that the arrangement he sought was in the children’s best interests.
(g)That the Mother’s solicitors were guilty of ‘misleading and lying’ to the Court by filing a genuine steps certificate when, in his view, genuine steps had not been taken.
(h)That the lawyers involved in the proceedings had ‘covertly collude[ed],’ ‘pervert[ed] the course of justice’ by ‘setting up reports that are meant to be impartial.’
(i)That staff of the Court had, on behalf of the Chief Judge, advised him that they ‘do not care that children are subject to abuse or that lawyers are breaching [the applicable professional conduct rules].’
(j)That the judges and registrars of the Court are ‘sworn to the same corporation and work together to assist the corporations [sic] ulterior motives’ of financial extortion.
(k)That the Mother’s solicitors had lied to and misled the Court about various matters. No statements made by the Mother’s solicitors were proven by the Father to have been deliberately untruthful or even inaccurate. The matters which the Father characterises as ‘lies’ are simply either matters which are outside his knowledge (such as conversations between the lawyers and third parties), or matters about which he has a different perspective, such as whether offers made by the Mother prior to the commencement of court proceedings could properly be described as a genuine effort to negotiate.
(l)That the Court is ‘responsible for 40 plus deaths per week.’
(m)That there is ‘systemic sexual discrimination against fathers.’
(n)That the Independent Children’s Lawyer adopted ‘a sly tactic used in an attempt to justify irrelevant and unjustifiable orders put in place to deliberately prolong proceedings and add processes she can maliciously influence.’
(o)That, despite the fact that the interim orders had in fact provided for time between the children and the Father and between the children and the paternal grandparents to take place, the Court was ‘denying the children a father and paternal family’ and ‘ordering the children out of [their] lives.’
(p)That the Court applied ‘secret laws.’
(q)That ‘child sex offenders’ presided over the Court and ‘Nazis’ were responsible for its orders.
(r)That the Court was using section 121 of the Act (which was then in force) to ‘threaten those being abused by the [Court] as a gag order’ and was engaging in ‘dodgy business’ because the Child Impact Report had been marked on the Commonwealth Courts Portal as ‘suppressed.’
(s)That the Court logo had a roman star and the font used in affidavits was Times New Roman, which he alleged demonstrated a link between the Court and ‘lower roman or star courts’ which were ‘deemed oppressive’, and ‘were used to achieve unjust orders’, and had been abolished in 1641.
(t)That the Court had ‘abused’ him and subjected him to ‘psychological torture.’
(u)That lawyers and registrars had engaged in ‘filthy, deceitful behaviour.’
The Father told Ms D, without prompting, that he could not ‘believe how corrupt lawyers are. There is blood on their hands. There is no law.’ He shared with Ms D his view that there is corruption in family law and complained that the process had been ‘really sexist.’
In the course of making his allegations, the Father often misquoted or demonstrated that he had misunderstood the relevant communications. Some of the allegations given the most attention by the Father are outlined in the following paragraphs.
Alleged Police corruption
In December 2020, shortly after the parents’ separation, the Father was arrested and an interim Intervention Order was made against him, which was described by him as ‘corrupt.’ The Intervention Order was subsequently withdrawn and no charges were proceeded with.
The Father alleged that the police officer who had taken the Mother’s statement and served him with the Intervention Order, a Mr G, was the father of a child by the same surname who attended school and played sports with X. He further asserted that Mr G was a friend of the Mother. Although conceded under cross-examination that this may have been ‘an overstatement’, he suggested in his closing submissions that the Mother may have been in a relationship with Mr G. The Father’s evidence was that he had seen Mr G at school pick ups and drop offs and at X’s sports matches.
The Father alleged that there had been police corruption associated with the Mother obtaining the interim Intervention Order and that Mr G had abused his authority as a police officer to assist the Mother, including by having ‘deliberately set up a breach’ of that order.
The Mother’s unchallenged evidence, which I accept, was that that the Father had very rarely attended X’s sports games, and the Father himself conceded that his attendance at school pick ups and drop offs had been rare. I do not accept that the Father recognised the police officer as the father of another child from those events. The Mother denied that she was friends with or knew Mr G. The Father did not establish that the fact that a child associated with X had the same, relatively common, surname as the police officer who had taken the Mother’s statement and served the Father with the Intervention Order was anything more than a coincidence. He did not establish that there was any police corruption involved with these events.
Alleged forgery and lie to Dr F
The Father alleged that the Mother’s solicitor and the Independent Children’s Lawyer had ‘colluded’ and that the Independent Children’s Lawyer had ‘forged documents’ and ‘lied’ with respect to the provision of information pertaining to the Mother’s mental health history to Dr F. The evidence before the Court reveals that the following events occurred in the lead up to and following the Mother’s scheduled appointment with Dr F, which took place on 8 June 2022:
(a)On 6 June 2022, the Independent Children’s Lawyer wrote to the Mother’s solicitor and the Father and requested that each provide her with information including any medical practitioners or allied health professionals with whom they had consulted in relation to their mental health.
(b)On 7 June 2022, the Mother’s solicitor responded to the Independent Children’s Lawyer but did not copy the Father into the communication. The covering email sent to the Independent Children’s Lawyer said, amongst other things, ‘[w]ith respect to this list, our client is loath to have this made available to the father in the event that he harasses her or these medical practitioners in his pursuit to prove his allegations. Can you please advise if you are willing to keep these names from being disclosed?’ The response from the Mother’s solicitor enclosed a document written by the Mother. In that document, under the heading ‘Practitioners in regards to my mental health’, the Mother had written ‘I have contacted [H Service], [K Service], and [P Service] over the years. I do not know how to provide you with details of my discussions with them I’m sorry. When I was approximately 8 years old, I saw psychologist [Ms J]. I have not seen her since I was a child. It has been easily over 20 years since I saw her. I do not know how long I saw her for. According to Google, her contact details are [contact details were then provided].’ There was no other information provided under that heading.
(c)The Independent Children’s Lawyer wrote to Dr F on 8 June 2022 and said, amongst other things, ‘the mother has indicated that she consulted with a psychologist when she was approximately eight years old in respect to her mental health and that she has not consulted with the psychologist since she was child (for over 20 years), or any other mental health practitioner since that time.’
(d)On the same day, the Independent Children’s Lawyer sent an email to the parties attaching the letter to Dr F and a letter addressed to the Father. The letter to the Father read, amongst other things: ‘I confirm that the mother has indicated that attended with a psychologist when she was approximately eight years old and has not seen that psychologist for over 20 years. The Mother has indicated that she has not had any further mental health treatment since that time.’
(e)On 16 June 2022, the Independent Children’s Lawyer wrote to the Mother’s solicitor and said, amongst other things, ‘[p]lease note I intend to provide a copy of the list of medical practitioners to [Mr Nalder] and the paternal grandparents.’ A copy of the information provided by the Mother was sent by the Independent Children’s Lawyer to the Father by email on the same day.
The Father’s grievances with respect to these events appeared to relate to the following:
(a)An assertion by him that the letters from the Independent Children’s Lawyer of 8 June 2022 were ‘two different statements she created’ which ‘read different [sic].’ Although worded slightly differently, these two communications were almost identical in substance. Under cross-examination, the Father insisted that they were different, but he was unable to identify any substantive difference.
(b)An allegation that neither of the letters sent by the Independent Children’s Lawyer on 8 June 2022 accurately reflected the information that had been provided by the Mother, in that ‘[n]owhere does [Ms Cato] say she has not seen a practitioner since a child.’ Although it was pointed out to him that the communication from the Mother listed only one practitioner as being the complete list of practitioners she had seen, and that the combined effect of only having seen one practitioner and not having done so since she was eight years old would be that she had not seen any practitioner since she was a child, the Father refused to accept that the information conveyed by the Independent Children’s Lawyer to Dr F had in fact been an accurate representation of the information provided by the Mother and insisted that the Independent Children’s Lawyer had ‘lied.’ This allegation was irrational.
(c)An allegation that the letter sent to Dr F was ‘forged’ and ‘mislead [sic] him and therefore the test results.’ The basis upon which the Father concluded that the letter sent by the Independent Children’s Lawyer was ‘forged’, despite the fact that it was and purported to be a letter sent by the Independent Children’s Lawyer relaying information provided by the Mother was not explained by the Father despite him being given an opportunity to provide such an explanation. It is also not clear how it could reasonably be asserted that the Independent Children’s Lawyer had misled Dr F, when her letter was an accurate (albeit differently worded) summary of the information that had been provided to her by the Mother.
(d)An allegation that the information provided by the Mother had been ‘withheld from [Dr F] and parties on advice from’ the Mother’s solicitor and had only been disclosed to the Father after he had accused the Independent Children’s Lawyer of withholding information. The Father’s criticism in this regard is again difficult to understand. Other than the name of the practitioner involved, the information provided to the Independent Children’s Lawyer by the Mother was relayed both to Dr F and to the Father on 8 June 2023. Noting that Dr F expressly indicated in his report that he did not consider it imperative that he have the notes from the psychologist seen by the Mother as a child, it is difficult to see how it could reasonably be said that failure to provide that person’s name constituted relevant information being ‘withheld’ from him. Furthermore, contrary to the request made by the Mother’s solicitor, the original information provided by the Mother was in fact provided by the Independent Children’s Lawyer to the Father, and this was done in ample time to enable the Father to issue a subpoena prior to the trial if he were of the view that the information had any relevance to the matters to be determined at the trial.
(e)An allegation that the Independent Children’s Lawyer had ‘covertly’ sent the email of 16 June 2022 to the Mother’s solicitor after the Father had ‘discovered the forged document sent to mislead [Dr F]’ and ‘threatened to subpoena the covert correspondence.’ He alleged that the provision of the information to him had ‘obviously’ been because he had ‘caught her not only withholding the records but falsifying information and misleading the psychologist to assist [the Mother].’ There was nothing ‘covert’ about the email sent by the Independent Children’s Lawyer to the Mother’s solicitor. The email simply advised the Mother’s solicitor that the Father was to be provided with the information despite the Mother’s request that this not occur. The facts asserted by the Father as to the Independent Children’s Lawyer’s motivation were far from obvious and no evidence was adduced to support them.
(f)An allegation that the Mother’s solicitor had ‘colluded’ with the Independent Children’s Lawyer by requesting that details of mental health practitioners that had been attended by the Mother not be disclosed to the Father. This request was misquoted by the Father as having been expressed to be both ‘in case [the Father] proves [his] allegations,’ and ‘the father may use them to prove his allegations.’ Both of these misquoted versions reflect a fundamentally different concern from that which had in fact been expressed by the Mother’s solicitor, which was that the Mother was loath to have the information provided to the Father ‘in the event that he harasses her or these medical practitioners in his pursuit to prove his allegations.’ Under cross-examination, the Father was either unwilling or unable to accept that there was a difference.
The Father’s allegations with respect to these events were unsubstantiated and lacking in credibility.
Alleged malicious influence on Contact Centre
After the interim orders were made, the Contact Centre declined to facilitate time between the Father and the children. The Father attributes this to malicious interference on the part of the Independent Children’s Lawyer.
The Father alleged that representatives of H Service had informed him that a Contact Centre location had availability for visits of 1.5 hours weekly on weekdays or fortnightly on weekends, that he could do a ‘walk around’ on the same day as his first visit rather than having a separate orientation, and that his proposed explanation to the children of why he had not seen them for so long, being that it was not his choice and ‘mum won’t let me see them’ was acceptable.
The Father admitted that at around the time that the Contact Centre visits were being organised, he had called the Independent Children’s Lawyer ‘sexist’ and a ‘disgrace to humanity.’ He asserted, demonstrating a lack of insight into the seriousness of his behaviour, that because this had been done in an email, it ‘wasn’t confrontational.’ He alleged that within an hour of having done so, he had received a telephone call from a Contact Centre manager advising him that the visits would take place at a different location from that originally planned, that they would take place two to three weeks apart, and that he would need to do the ‘walk around’ on a day prior to the first visit. The Father alleged that ‘[i]t was obvious [the Independent Children’s Lawyer] could not regulate her emotions and had maliciously influenced the contact centre.’
The Father deposed that he had attended the Centre for the ‘walk around’, during which visit:
(a)He was asked for his financial details. The Father inexplicably queried whether this demonstrated an ‘ulterior motive’ of ‘assisting Bar members.’
(b)He was told that his proposed response to the children as to why he had not seen them for a long time would lead to the need for Contact Centre workers to intervene. It is noted that this is an unsurprising response, irrespective of what the Father had been told on a previous occasion, because the Father’s proposal to tell the children that their mother would not let him see them was inappropriate.
(c)He was told that there would be three supervisors present for visits with the children.

The Father deposed that at this point it was ‘obvious’ that the Independent Children’s Lawyer had ‘maliciously influenced the contact centre and there would be nothing impartial.’
The Father’s evidence was that he advised the Contact Centre manager that he would only be attending if a third party could be present, and that during the ensuing discussion, the manager ‘became difficult’ and had ultimately advised him that the visits would be cancelled. He alleged that she had implied that it was his fault that the visits had been cancelled and that ‘the set up was obvious.’
The Father alleged that the Independent Children’s Lawyer had ‘admitted’ that she had communicated with the Contact Centre regarding her view as Independent Children’s Lawyer about how the visits should progress in the best interests of the children. That is unsurprising. Such communications with the Contact Centre are an appropriate part of the discharge of the duties of the Independent Children’s Lawyer and are not a cause for concern. Under cross‑examination, he alleged that the Independent Children’s Lawyer had admitted having asked the Contact Centre to change the arrangements. That allegation was unsubstantiated.
The Father was cross-examined at length with respect to the records of the Contact Centre, which had been produced pursuant to subpoena.[13] Those records revealed that the Contact Centre had contacted the Independent Children’s Lawyer to seek her views, and that she had said, inter alia, that it was up to the Centre how they scheduled the visits. The records of the Centre are entirely consistent with a letter written by the Independent Children’s Lawyer to the Father, the date of which is not visible from the copy produced by the Father, which said, inter alia, ‘I have had communication with the contact service in respect to my view as Independent Children's Lawyer about how the visits should progress in the best interests of the children. I reiterate that the final decision about how the visits take place is made by the contact service, and not by the Independent Children's Lawyer.’ Contrary to the allegation of the Father, this was not an admission of any inappropriate conduct. The Father insisted under cross‑examination that this letter constituted an admission that the Independent Children’s Lawyer had communicated with the Centre in the hours preceding the change to the arrangements for his time with the children. It plainly was not, which the Father ultimately conceded.
[13] Exhibit M1.
The Contact Centre records also revealed that the change of location of the visits had been due to resource issues and the ability to commence the visits sooner if they occurred the changed location, and that the Centre had ultimately cancelled the visits with the children because the Father had declined to meet with them to discuss concerns he had raised about their processes. The Father’s evidence was that he had insisted that the visits be ‘supervised or recorded,’ he had been advised that this was against the Centre’s policy, he had continued to insist, and in response, the visits had been cancelled by the Centre. On any view, the Father had, by his conduct, caused the Centre to cancel the visits. It is noteworthy that the Centre records demonstrate that prior to the visits being cancelled, the Father had also engaged in an inappropriate and conflictual manner with the Centre staff, such as by accusing them of being ‘corrupt’, ‘deceitful’ and ‘vindictive.’ Despite this, the Father expressly refused to take any responsibility for the fact that the visits had not proceeded.
The Contact Centre records contained nothing to suggest that the Independent Children’s Lawyer had contacted the Centre in the hour between the Father having called her a ‘disgrace to humanity’ and the changes to the visits having been made, or that the Independent Children’s Lawyer had initiated any contact with the Centre. When this was put to the Father, he initially accused Counsel of being ‘laughable’ and then claimed that the Contact Centre records were ‘false’ and ‘more evidence of corruption.’ He was unable to consider the possibility that the changes at the Contact Centre were unrelated to any interference by the Independent Children’s Lawyer and instead asserted that the Independent Children’s Lawyer was ‘blaming it on the children’s best interests.’
Conclusions
As indicated earlier in these reasons, the Father was warned at the commencement of the trial that its purpose was not a wide-ranging investigation into alleged corruption or the conduct of legal practitioners, and that evidence in relation to such matters would only be taken into account to the extent that it was relevant to determination of the children’s best interests. He was also told that the Court would not be making orders relating to matters unconnected to the children and their best interests.
When invited at the conclusion of the trial to make submissions as to the relevance of these allegations to the determination of the children’s best interests, although he conceded he was ‘not saying they are in relation to the children’s best interests’, the Father ultimately submitted that the matters pertaining to conspiracy and corruption undermined the allegations put against him.
The evidence before the Court does not reveal any misconduct or impropriety on the part of the Independent Children’s Lawyer or the Mother’s solicitors and indeed the available evidence suggests that they have consistently conducted themselves appropriately and professionally in the face of extremely difficult conduct directed towards them by the Father, much of which is considered later in these reasons. The evidence before the Court certainly does not suggest that there was any conduct on the part of any of the professionals involved in these proceedings which could be said to have had a deleterious impact on the interests of the children.
The Father’s allegations of conspiracy, corruption and like conduct are inappropriate and scandalous. They are relevant to the determination of the children’s best interests only in what they reveal about the Father, his attitude and his state of mind. In making these extreme allegations in relation to such a wide and varied range of professionals and in persisting with his theories in the face of demonstration as to their flaws, the Father presented as highly paranoid, intensely suspicious, quick to anger, stubborn, and entirely unable to engage in any introspection when he does not get his way or when he is confronted with events that are not to his liking. This does not bode well in terms of the Father’s ability to provide safe and stable parenting or to be an appropriate role model for the children.
THE FATHER’S CONDUCT DURING THE PROCEEDINGS
In addition to his allegations of corruption and misconduct, the Father consistently engaged in combative, aggressive, confrontational and at times threatening behaviour towards the Mother and towards many of the professionals involved in this matter, including the Mother’s solicitors, the Independent Children’s Lawyer, representatives of the Court, and members of staff of the Contact Centre. He has also acted with flagrant disregard for his obligations pursuant to orders of the Court, demonstrated a lack of respect for authority and shown either an inability or an unwillingness to recognise or comply with the boundaries of appropriate behaviour.
Examples of the Father’s inappropriate conduct directed towards the various professionals involved in the proceedings included (but was not limited to) the following:
(a)As outlined above, he called the Independent Children’s Lawyer ‘sexist’ and ‘a disgrace to humanity.’ This occurred after the incident in which he alleged (without foundation) that the Independent Children’s Lawyer had ‘forged’ documents and ‘lied’ to Dr F.
(b)He left critical Google Reviews for the Mother’s solicitors’ firm in which he accused them of misconduct, assisting ‘[v]indictive ex partner's [sic] to continue abduction of children’, ‘milking legal aid’ and ‘misleading their clients’ and identified himself as a party to family law proceedings.[14]
(c)He repeatedly sent correspondence to the Mother’s solicitors and the Independent Children’s Lawyer which was aggressive, hostile and abusive and which denigrated the Mother and the various professionals involved in the proceedings.[15]
[14] Exhibit M4.
[15] Examples of which were tendered as exhibit M2.
The Father repeatedly made threats towards and engaged in behaviour that could reasonably be expected to intimidate the various lawyers involved in the proceedings, including the Independent Children’s Lawyer and the Mother’s solicitors. This conduct included:
(a)Asserting that he had or would report them to the conduct commission for alleged ‘unethical conduct.’
(b)Making complaints about them to the Chief Judge of the Court and the Attorney‑General and Prime Minister of the Commonwealth of Australia, together with other members of Parliament; or claiming to have done so.[16]
[16] Exhibits M2 and M5.
(c)Making a complaint about the Independent Children’s Lawyer to her employer.
(d)Threatening to ‘take the matter pubic,’ take it ‘outside the court’ and ‘to parliament.’
(e)Attending at the offices of the Mother’s solicitors in late 2022 and refusing to leave when requested to do so. Despite admitting that having done this, the Father alleged that the Mother’s solicitor had ‘ambushed’ him on this occasion.
(f)Advising the Mother’s solicitors that he had contacted a news channel, who he asserted (plainly falsely) were ‘very interested in covering this story.’
(g)Sending an email to the Independent Children’s Lawyer, copied to the Mother’s solicitors asking ‘what is a better headline[?]’ and providing options which could only be interpreted as threats to criticise either the Independent Children’s Lawyer or the Mother’s solicitors in the media.
(h)Making numerous threats to ‘go public’ with his allegations.
(i)Seeking, as part of his application before the Court, that various lawyers involved with the proceedings be ‘disbarred.’
(j)Threatening the Mother and her solicitors with civil proceedings.
(k)Sending an email to the Mother’s solicitor referring to what he understood to be the names of the solicitor’s children and asking, inter alia, how the solicitor would feel if they were abducted. In this regard, the Father gave evidence that he had found what he understood to be the names of the children on social media.
(l)Making or claiming to have made complaints and expressing grievances to numerous persons and bodies, including but not limited to the Attorney-General of the Commonwealth of Australia and the former Attorney-General of the State of South Australia.
(m)Telling Counsel for the Mother, during her cross-examination of him, ‘you will get a complaint about you, don’t worry.’
The Father readily admitted that he had engaged in the behaviours described above. He did not express any remorse or contrition and demonstrated no insight into the seriously inappropriate and frequently abusive nature of his behaviour. He appeared genuinely not to understand that his behaviour was deeply problematic.
The Father was cross-examined about whether he had taken these actions for the purpose of causing the various professionals involved to feel threatened. He denied that that had been his intention. This denial was not credible. He also denied having intended to cause the Mother’s solicitors to change the advice they gave the Mother as to the conduct of the proceedings but subsequently admitted that this had in fact been his intention. He also admitted to having acted in the way in which he had so that they ‘would behave,’ would ‘change their behaviour’ and would ‘clean up [their] act.’
The Father also used correspondence sent to her solicitors to direct threats towards the Mother, such as threatening to make a police report against her, to litigate against her to recover alleged financial losses, and to ‘display that she is an unfit mother’[17]or to have her psychological records subpoenaed to ‘open [a] can of worms for her.’ The Father denied having made these threats in order to cause the Mother to feel fear and cause her to agree to what he wanted as a result. That denial was unconvincing.
[17] Exhibit M2.
The Father told Ms D that ‘if [the children] remain with their mother, I would be the Court's and the lawyer's worst enemy. [Ms Cato] has mental illness. I am absolutely amicable.’ Under cross-examination, it was put to the Father that he had said this so that it would be known that he would be difficult if he did not get what he wanted. He did not dispute this proposition. The Father’s description of himself as ‘amicable’ in the face of such a threat gives rise to significant concern about his level of insight into his own conduct. Also of concern is that this threat was the Father’s response when invited to consider how the children would respond to staying with their mother. This was one of many examples of the Father’s inability to consider the children’s perspectives rather than his own.
Ms D agreed under cross-examination that if the Court accepted that the Father had been trying to control the conduct of the legal representatives involved in the case in order to manipulate the outcome of the proceedings, this was extremely concerning conduct. She also agreed with the proposition that continuing such conduct in the face of the recommendations in her report showed either an inability or an unwillingness to have insight into and moderate his behaviour, which in turn gave rise to concern that such behaviour would continue in the context of any attempt at co-parenting following the conclusion of the proceedings. I agree with these observations.
Much of the presentation of the Father’s case was obscured by his use of pseudolegal rhetoric. For example:
(a)He repeatedly alleged that there were ‘twelve presumptions of law’ or ‘secret 12 laws’ which he had ‘rebutted.’ He was unable or unwilling to explain what he meant by this assertion.
(b)He threatened that if the hearing was delayed, he would be ‘publicly issuing a lien’ against the Court.
(c)He purported to issue the Court with a ‘Notice of Intention to Release Facts Publicly.’
(d)He tendered a document entitled ‘Will and Testament Codicil’[18] purporting to instruct me to ‘disperse securities and property of estate’ (being the children) to him.
(e)A significant proportion of his closing submissions was dedicated to assertions that ‘no agent [had] provided evidence’ with respect to various matters including ‘administering trusts for financial gain,’ admiralty law, trading bonds, the Court ‘impersonating a non-corporate Commonwealth’ and ‘practising as a star chamber,’ fathers becoming ‘wards of the court’ and the Independent Children’s Lawyer not being ‘an agent of the trust.’
[18] Exhibit F7.
Despite their use of legal words, these submissions and assertions were devoid of legal meaning.
During the second day of the trial, the Father abruptly left the witness box in anger during his cross-examination and refused to return. Despite being warned multiple times that if he did not continue to make himself available for cross-examination, he would not be permitted to rely on his affidavits, he persisted in his refusal to return to the witness box. During the third day, well into the Mother’s evidence, the Father sought to reopen his case, to rely on his affidavits and to return to the witness box. This application was ultimately granted over the opposition of the Mother and the Independent Children’s Lawyer. The Father’s inappropriate outburst, openly disrespectful behaviour and inability to contain his anger even when it was so clearly in his interests to do so was entirely consistent with the Mother’s allegations as to the manner in which he conducts himself and it caused me great concern as to his ability to control himself in the presence of the children.
At the commencement of the final day of the trial, the Father sat at the back of the courtroom and purported to refuse to make his way to the Bar table until some ‘conditions’ were met by the Court.
Ms D described the Father as ‘domineering and forthright.’ This was an assessment which aligned with my own observation of the Father and which was consistent with the manner in which the Father conducted himself throughout the trial.
Ms D opined that both parents present with limitations in their ability to develop insight in their own behaviour. In my observation, this was significantly more so in the case of the Father, who presented as entirely lacking in insight into the inappropriateness of his deeply troubling behaviour.
Under cross-examination by the Independent Children’s Lawyer, the Father was asked whether he accepted that any of his behaviour had led the proceedings to where they then stood and he responded in the negative. His evidence was that his only regret in relation to the manner in which he had communicated with professionals, the Court and the various governing bodies was that communications had been ‘used against [him].’
The Mother’s unchallenged evidence, which I accept, was that the Father’s conduct during the course of these proceedings was emblematic of a broader tendency on the Father’s behalf to engage in highly conflictual interactions with others when he does not get his way. The manner in which the Father conducted himself throughout the proceedings was entirely consistent with the Mother’s allegations that he behaves in a way that is aggressive, oppositional, threatening and intimidating and lacks respect for authority. Based on the Father’s conduct during the proceedings, I have no hesitation in accepting the Mother’s evidence as to his historical conduct. This does not bode well in terms of the Father’s capacity to provide safe and appropriate parenting to the children, including his capacity to be an appropriate role model.
Counsel for the Independent Children’s Lawyer submitted that the manner in which the Father had conducted the proceedings gave rise to numerous concerns with respect to his ability to provide safe and consistent parenting to the children. He further submitted that the Father’s conduct towards the Courts and the legal practitioners and other professionals involved in the case suggested that rather than focusing on the children, the Father had attempted to control the proceedings and put illegitimate pressure on various professionals in order to elicit a response which would benefit his case. Counsel for the Mother similarly submitted that the Father’s conduct had been designed to harass or threaten the various legal representatives involved in the case with the aim of causing the Independent Children’s Lawyer to amend her position and the Mother’s solicitors either to change their advice or cease their involvement in the matter. I accept those submissions.
THE FATHER’S HOSTILITY TOWARDS THE MOTHER
The manner in which the Father presented his case demonstrated an unremitting level of contempt and significant level of hostility directed towards the Mother. His evidence contained numerous demeaning criticisms of her, including:
(a)That she was a person who was ‘on welfare [her] whole life and who cannot provide for the children, setting a good example.’ This criticism was extremely hypocritical given the undisputed fact that the Father does not pay child support. It also gave no recognition to the Mother’s history of studying, to her evidence that she is employed on a part-time basis, or, significantly, to her role as the primary carer of the parents’ two young children. The Father’s oral evidence in relation to this issue was dismissive of the Mother.
(b)That she engaged in ‘pathogenic parenting.’
(c)That she ‘has issues’ which require treatment before she will be able to ‘have discussions like an adult.’
(d)That she had left his home looking like a ‘pig sty’ after spending time there during the parents’ relationship.

There are many aspects of the evidence before the Court which suggest that orders providing that the children spend time with the Father would expose them to a risk of harm. These include, amongst other things, the Father’s tendency towards paranoia and farfetched conspiracy theories, his persistent combative, aggressive, disrespectful and threatening behaviour, his lack of insight into the inappropriateness of his conduct and failure to accept responsibility for the consequences of his own behaviour, and his anger and poor impulse control, all of which have been considered earlier in these reasons.
The Independent Children’s Lawyer submitted that the question of whether a finding that the Father had subjected the Mother to coercive controlling violence was made was ‘pivotal’ to Ms D’s recommendations as to whether there should be time spent between the Father and the children. I agree with that assessment, noting that Ms D, whose evidence was not successfully undermined, recommended that the question of the children’s safety in the care of the Father be assessed in light of the findings made by the Court about coercive and controlling violence. I have found that the Father engaged in such violence as alleged. As such, the children’s safety in the care of the Father is a matter of significant concern.
Other matters weighing against a finding that it is in the best interests of the children to spend time with their father include his overt hostility towards the Mother and the risk that the children’s relationship with her would be undermined, the Father’s limited focus on the children and limited insight into their needs, and the unknown status of his mental health and its impact on both his behaviour and his parenting capacity.
As best I can, within the limits to the available evidence which have arisen as a result of the manner in which the Father has conducted himself and his case, I have carefully turned my mind to the existence of the possible risks of harm and also to the magnitude of the possible harm. I am satisfied that there is an unacceptable risk that the children will suffer emotional harm and that their experience of safe and consistent parenting will be undermined if orders are made which provide for them to spend time with their father.
Amelioration of risk
I have considered whether the risk might be ameliorated by protective measures such as supervision. Given the risks posed to the children’s wellbeing if they were to spend time with the Father and the Father’s apparent inability to control his behaviour even when it would clearly be to his benefit to do so, the only available option with any realistic prospect of protecting the children from harm would be indefinite professional supervision. Whilst it remains a matter of discretion, many authorities have expressed caution in relation to the desirability of such orders.[65]
[65] See for example, Moose & Moose [2008] FamCAFC 108; (2008) FLC ¶93-375; Slater & Light [2013] FamCAFC 4; Champness & Hanson [2009] FamCAFC 96; (2009) FLC ¶93-407; Bant & Clayton [2019] FamCAFC 198; (2019) FLC ¶93-924.
One significant risk associated with the prospect of indefinite supervision in this particular case is that the Father would be so aggrieved by orders for supervised time that he would act in a manner which would sabotage any prospects it might have of being a positive experience for the children. In this regard, I accept the submission made on behalf of the Mother that the evidence before the Court demonstrates that the Father’s engagement with the children must, from his perspective, always be on his terms. There is also a risk that he would use his engagement with the nominated supervisor as a further opportunity to engage in, and risk exposing the Mother and/or the children to, combative and aggressive conduct.
Another significant obstacle to the workability of such orders is the likelihood that an appropriate supervisor would be unable to be found, noting that the Father has already, by his conduct, disqualified himself from engaging with one service provider, and there is no evidence before the Court of the availability of an alternative provider for long term supervision. The evidence before the Court does not suggest that supervision is a viable option.
The Father’s refusal to comply with the order requiring him to attend upon Dr F because of his view that there was ‘no basis’ for the order gives rise to serious concern that the Father would fail to comply with other orders for which he felt there was no basis. The same is true of his admitted failure to comply with an order that he undertake the Kids Are First parenting course, which he did not do because he ‘didn’t see a problem with [his] parenting.’ When it was pointed out to him that he had been required to do so by an order, he responded ‘but who sought it?’
Under cross-examination by the Independent Children’s Lawyer, the Father admitted that he would only comply with court orders if he considered them to be ‘fair.’ As a consequence of the Father’s attitude in this regard, the Court can have no confidence that the Father would consider the existence of a court order to be, in and of itself, a basis for compliance, and as such, can have no confidence that he would comply with any orders or injunctions that might be put in place to ameliorate the identified risks.
Counsel for the Mother submitted that the Father’s attitude towards the legitimacy of the Court and its jurisdiction over himself and the children was cause for concern because it suggested it was very unlikely that any orders that could be made to ameliorate risk would not be acknowledged by the Father as being binding on him. When invited to respond to this concern, the Father said ‘why would an order be placed against me?’ and then confirmed that he would only comply with orders he considered to be in the children’s best interests. I accept the submission of Counsel for the Mother.
I have turned my mind to the issue of the children’s sense of identity. I recognise the importance of them knowing their family of origin and maintaining a sense of identity through connection with their father. I have not overlooked the potential loss they may suffer in this regard.
Ultimately, however, weighing up the considerations outlined above, I accept the submission of the Independent Children’s Lawyer that the risks to the children associated with spending time and communicating with the Father outweigh the benefit to them of attempting to resurrect a relationship with him, and the submission made on behalf of the Mother that the evidence before the Court does not suggest that a relationship between the Father and the children could be recommenced in a manner which would protect them from an unacceptable risk of harm.
TIME AND COMMUNICATION BETWEEN CHILDREN AND GRANDPARENTS
The paternal grandparents’ overwhelmingly negative views of the Mother and the inability of the paternal grandfather, in particular, to consider any explanation for difficulties in their relationship with the children other than malicious conduct on the part of the Mother, give rise to a need to protect the children from exposure to criticism of their primary caregiver. In this regard, I accept the submission of the Independent Children’s Lawyer that there is a significant risk that the children would be exposed to denigration of their mother and therefore risks to their emotional safety if they were to spend time with the paternal grandparents.
This weighs against any order providing for unsupervised time with the paternal grandparents, notwithstanding that they both gave evidence that they would refrain from denigrating the Mother in the presence or hearing of the children. Even if it were accepted that that evidence was evidence of a genuine intention, it is noted that the paternal grandfather was unable to control his anger or his expressions of contempt for the Mother in the witness box, during the Family Report appointments or at the Contact Centre, even when he knew that he was being observed, which speaks of a limited ability on his behalf to moderate his behaviour even in circumstances where it is important that he do so.
In light of my finding that spending time with the Father would pose an unacceptable risk of harm to the children, there is another significant reason for caution with respect to time between the children and the paternal grandparents. The Mother gave evidence under cross-examination by the paternal grandfather that she did not consider the children to be safe around the Father as a result of his behaviour, and did not trust that the paternal grandparents would keep them safe or act other than in accordance with the Father’s wishes. Despite the Father’s evidence that if orders were made for time with the paternal grandparents and not with him, he would ‘respect it’ and would ‘not interfere’, in light of his history of non-compliance with orders and his evidence that he would only comply with orders if he considered them fair, together with his demonstrated inability to control or even recognise his inappropriate behaviour, the Court can have no confidence in this regard.
Counsel for the Mother submitted that given the paternal grandparents’ alignment with the Father there was an unacceptable risk that the paternal grandparents would bring the children into contact with the Father. I agree that this is a significant concern, which is exacerbated by the paternal grandparents’ failure to condemn the troubling behaviour and attitude towards the Mother and the children exhibited by their son throughout the proceedings.
Each of the paternal grandparents was cross-examined about whether, if orders provided for the children to spend time with them but not with the Father, they would comply with restrictions on bringing them into contact with him. The paternal grandmother gave firm and clear evidence that she would comply with any conditions limiting contact between the children and the Father, but given the forceful and domineering conduct of both the Father and the paternal grandfather as discussed elsewhere in these reasons, I was left with significant doubt as to whether she would in fact be able to do so. When asked if the paternal grandfather was overbearing towards her, the paternal grandmother responded ‘not all the time.’ It is also noteworthy that the paternal grandmother’s evidence was that although she recognised the utility in attempting reunification therapy, the paternal grandfather had got his way in relation to this issue. I note also that she did not engage in the therapy independently of him or make any proposal to do so. This does not bode well with respect to the paternal grandmother’s ability to stand up to him, even when she forms the view that his approach is not the best approach for meeting the children’s interests.
The paternal grandfather responded to the question about whether he would comply with restrictions on bringing the children into contact with the Father by saying that he thought that would be ‘very unreasonable.’ He also said that he considered such a restriction would be ‘ridiculous’ because the Father has ‘done nothing wrong.’ This did little to encourage faith in his likely compliance, notwithstanding that he gave evidence that he would comply.
The paternal grandfather’s evidence in this regard also confirmed the Mother’s allegation that he lacks insight into the problematic nature of the Father’s behaviour. This was also confirmed when, in response to a question about whether he could see the connection between the Father’s behaviour and the children’s best interests, he responded that the children did not know about the letters and emails sent by the Father to the various professionals, and said that when the Father got ‘custody or part custody,’ the Father would be happy, and then ‘it will all be irrelevant.’
The paternal grandmother, likewise, as alleged by the Mother, demonstrated limited insight into the problematic nature of her son’s behaviour or the extent to which it posed a risk of harm to the children and their emotional safety. For example, when asked whether she considered it appropriate to send emails of the type the Father has sent to people doing their jobs, which gave her the opportunity to condemn his behaviour and distance herself from it, she simply responded ‘probably not.’ Although they appeared to recognise that much of the Father’s conduct was likely damaging to his case, neither of the paternal grandparents appeared to appreciate that there could be any risk of harm to the children presented by exposure to the Father, notwithstanding their full awareness of his deeply problematic behaviour and attitude.
The paternal grandmother also gave evidence that she thought that if there were orders that restrained the Father from having contact with the children, he would respect that. Given the attitude taken by the Father towards Court orders with which he did not agree during the course of the proceedings and his own evidence that he would only comply with orders he considered fair, that evidence was entirely unrealistic. I had the impression that it was given because the paternal grandmother believed that the alternative response would be harmful to her son’s case, and not because she genuinely believed it to be true. If the paternal grandmother did in fact consider that evidence to be true, this is suggestive of a serious lack of insight on her part into the realities of her son’s attitude and behaviour.
The likelihood that the paternal grandfather will be upset by the orders that are to be made with respect to the Father is also a matter of concern in light of the concerning manner in which the paternal grandfather responded to being upset as demonstrated in the Contact Centre report.
It was submitted on behalf of the Mother that it is of significance that the children are resistant to spending time with the paternal grandparents to the point where time was unable to be facilitated even in a professional setting. I accept that submission.
The Independent Children’s Lawyer likewise submitted that there was a serious question as to whether time between the children and the paternal grandparents would be tenable in light of the children’s expressed views and their conduct as demonstrated in the Contact Centre reports. I accept these submissions, which were supported by the evidence of Ms D, who accepted under cross-examination that any reintroduction of the children to the paternal grandparents would need to be supervised and done in a way which ensured that the children experienced the interactions as safe and positive.
Whatever its causes, the children’s refusal to spend time with the paternal grandparents presents a significant difficulty with their proposal. As was ultimately conceded by both of the paternal grandparents, the children could not simply be forced to attend, and reunification therapy, followed by a sensitive and careful approach to establishment of a regime for time, would be the only realistic option for recommencing a relationship. Yet, when offered the opportunity to engage in such therapy prior to trial, the paternal grandparents refused. In the case of the paternal grandfather at least, this refusal was borne of stubbornness, self-focus and a failure to consider the children’s perspectives.
Had the therapy proceeded, the Court would have had the benefit of evidence as to whether it had succeeded and whether any proposal for time was realistic. Instead, the Court is left without any knowledge whatsoever as to whether therapy would succeed if attempted, whether the children would even be able to be persuaded to participate effectively, and in the event that the therapy was successful, the nature of the relationship that would then result and what the children’s wishes in relation to time with their grandparents would then be. These unfortunate circumstances are of the paternal grandparents’ making.
It is a great shame that the focus of the paternal grandparents was on their own interests and perspectives rather than on how best to serve the children’s needs at the time when they rejected both the Mother’s proposal that they spend time with the children in her presence and the proposal for reunification therapy, either or both of which had the potential to avoid the situation now faced by both the paternal grandparents and the Court, being that how any steps taken to resurrect a relationship might turn out is unknown.
Furthermore, it appears that the situation that now exists is one where considerable collaboration between the paternal grandparents and the Mother would be required in order to re-establish the relationship between the paternal grandparents and the children in a sensitive, nuanced and child-focused way, particularly when this would, of necessity, be done without the ongoing monitoring of the Court. In light of the open and unremitting hostility towards the Mother demonstrated by both of the paternal grandparents and the paternal grandfather in particular, and his demonstrated inability to put that hostility aside when to do so would benefit the children or even when it would be to his own benefit, it is difficult to envisage that the necessary level of collaboration could be achieved. Furthermore, as acknowledged by Ms D in her oral evidence, there would be risks to the children’s emotional wellbeing of unsuccessful attempts to restore the relationship.
Although the paternal grandmother presented as able to focus on and consider the children’s interests and perspectives and as having some insight into their needs, as demonstrated by the approach she took at the Contact Centre, the potential benefit to the children arising from a relationship with her must be balanced against the many risk issues as outlined in these reasons. Those risks include the paternal grandfather’s significantly less child-focused approach, his open hostility towards the Mother, his poor attitude towards women in general and his lack of insight into his own conduct.
Given the paternal grandmother’s demonstrated greater level of insight and child focus than that held by either her husband or her son, I invited submissions (including from each of the paternal grandparents separately) in relation to, and have given careful consideration to, whether it would be in the children’s best interests to spend time with her and not the paternal grandfather.
However, contrary to the submission of the paternal grandmother that this would ‘probably be workable,’ the evidence before the Court does not suggest that this would be feasible, partly because of the control exercised by the paternal grandfather over his wife’s engagement with the children (such as with the issue of reunification therapy and his conduct towards her at the Contact Centre), and partly because the same issues as identified above regarding the children’s refusal would remain. I accept the submissions of the Independent Children’s Lawyer and the Mother that the evidence before the Court gives rise to significant concern about the ability of the paternal grandmother to protect the children from the paternal grandfather or the Father imposing themselves on any time the children spent with her or to keep herself separate from them.
As with the question of time with the Father, I have given careful consideration to the fact that without contact with their paternal grandparents, there is a risk to the children in the terms of their sense of identity.
I have also given consideration to the potential of indefinite supervision with respect to the paternal grandparents to ameliorate some of the risks apparent on the evidence. Several of the same concerns as exist with respect to the Father also apply in relation to this option, including the risk that the conduct of the paternal grandfather in particular in response to the requirement for supervision would be such that the experience would not be a positive one for the children, and the risk of exposure of the children to the paternal grandparents’ and particularly the paternal grandfather’s unrestrained hostility towards their primary carer, although it is noted that a professional supervisor would likely intervene if this were to occur. It is difficult to see, however, how orders for supervised time could, without more, be expected to be implemented given the lack of success in implementation of such orders on the previous occasion.

I have weighed all of the evidence and considered the various options and possibilities in coming to a decision concerning how the best interests of these children might be met with respect to time and communication with their paternal grandparents. I conclude, having regard to the matters outlined above, including my consideration of the section 60CC factors to the extent that they apply in relation to parties who are not parents, that it is not in the best interests of the children to spend time with or communicate with the paternal grandparents because the risks associated with doing so cannot be satisfactorily ameliorated.
OTHER ISSUES
The Mother proposed that the Father be at liberty to send letters, gifts and cards to the children for Christmas and their birthdays. Counsel appearing on her behalf confirmed that she also supported this proposal in relation to the paternal grandparents. Given that the orders to be made will not otherwise provide for any time or communication between the children and their father or his immediate family, I consider it in their best interests to be able to receive letters, gifts and cards from the Father and paternal family as proposed by the Mother.
If done appropriately, this has the potential to ameliorate any detriment the children might suffer with respect to their sense of identity from the absence of their father and paternal grandparents from their lives and to reassure them that those family members love them and have not abandoned them. However, in light of the significant animosity held by the Father and his parents towards the Mother, and the inability of the Father and the paternal grandfather in particular to disguise this animosity even when it is clearly in their interests to do so, there is a significant concern that the contents of such letters and cards could be inappropriate in content and thus harmful to the children. To ameliorate this risk, I shall order, as sought by the Mother, that she be at liberty to ensure that such material provided by the Father and the paternal grandparents is age appropriate, child-focused and does not denigrate her or any other person before it is provided to the children.
The Father sought a number of orders pertaining to the maternal grandmother, Ms E. The maternal grandmother was not a party to the proceedings and there was no evidence before the Court in relation to her mental health or any risk she may pose to the children aside from the Father’s unsubstantiated allegations as to a history of ‘pathogenic parenting.’ The Mother’s unchallenged evidence, which I accept, was that the maternal grandmother shares a close and loving relationship with the children. On the evidence before the Court, there is no basis for any restrictions in relation to the children spending time with her.
CONCLUSION
Having regard to all of the considerations as outlined above, I make orders as set out at the commencement of these reasons, which I am satisfied are in the children’s best interests.

I certify that the preceding three hundred and thirty-five (335) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker.
Associate:
Dated: 6 June 2024

File number(s):	ADC 3539 of 2021
Judgment of:	JUDGE PARKER
Date of judgment:	6 June 2024
Catchwords:	FAMILY LAW – PARENTING – allegations of emotional manipulation of children and ‘pathogenic parenting’ by Mother – where Mother found not to pose an unacceptable risk to children FAMILY LAW – PARENTING – unacceptable risk – where the Father conducted himself throughout the proceedings in a manner which was abusive, threatening and intimidating towards the Mother, the Mother’s legal representatives, the Independent Children’s Lawyer and the Court – where the Father subjected the Mother to coercive and controlling violence – where the Father refused to comply with an order for a psychiatric assessment – where the Father poses an unacceptable risk to the children – no time or communication ordered between Father and children FAMILY LAW – PARENTING – application by paternal grandparents – where children refused to spend time with grandparents at contact centre – where grandparents declined to pursue reunification therapy – where there is a risk that time with grandparents would result in exposure to Father – where paternal grandparents found to be unlikely to shield children from hostility towards Mother – no time or communication ordered between paternal grandparents and children FAMILY LAW – PRACTICE AND PROCEDURE - Where an order made pursuant to section 102NA of the Family Law Act 1975 (Cth) applies and the Father refused to avail himself of legal representation through the Family Violence and Cross-Examination of Parties Scheme – where Mother’s evidence is largely unchallenged and is accepted
Legislation:	Evidence Act 1995 (Cth) ss 79, 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65DAA, 69ZN, 69ZX, 102NA Family Law Amendment Act 2023 (Cth) s 12(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 8.15(3)(e)
Cases cited:	A & A [1998] FamCA 25; (1998) FLC ¶92-800 Agapis v Birmingham DCJ [2013] WASC 329 Akston & Boyle [2010] FamCAFC 56; (2010) FLC ¶93-436 B & B (Access) [1986] FamCA 52; (1986) FLC ¶91-758 B & B [1993] FamCA 143; (1993) FLC ¶92-357 Bain & Bain (Deceased) [2017] FamCAFC 80; (2017) FLC ¶93-772 Bant & Clayton [2019] FamCAFC 198; (2019) FLC ¶93-924 Bielen & Kozma [2022] FedCFamC1A 221 Blinko & Blinko [2015] FamCAFC 146 Bradley v The Crown [2020] QCA 252 Brown & Pederson [1989] FamCA 8 Browne v Dunn (1893) 6 R 67 HL Carter & Wilson [2023] FedCFamC1A 9; (2023) FLC ¶94-129 Champness & Hanson [2009] FamCAFC 96; (2009) FLC ¶93-407 Cotton & Cotton [1983] FamCA 18; (1983) FLC ¶91-330 Cubbin & Cutler [2018] FamCAFC 84 Dennison & Wang [2010] FamCAFC 182 DL & W [2012] FamCAFC 5; (2012) FLC ¶93-496 Ellis v Wallsend District Hospital (1989) 17 NSWLR Friscioni & Friscioni [2010] FamCAFC 108 Grier & Grier [2023] FedCFamC1A 32; (2023) FLC ¶94-135 Hall & Hall [1979] FamCA 73; (1979) FLC ¶90-713 Harridge & Harridge [2010] FamCA 445 Irish & Michelle [2009] FamCA 66 Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092 Jacks & Sampson [2008] FamCAFC 173; (2008) FLC ¶93-387 Jardein Pty Ltd v Stathakis [2007] FCAFC 148 L & T [1999] FamCA 1699; (1999) FLC ¶92-875 Lambert & Lambert [2002] FamCA 537 LC & TC [1998] FamCA 47; (1998) FLC ¶92-803 Leone & Cino [2016] FamCAFC 224; (2016) FLC ¶93-744 Lorreck & Watts [2012] FamCAFC 75 M & M [1988] HCA 68; (1988) 166 CLR 69 Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305 Maluka & Maluka [2011] FamCAFC 72; (2011) FLC ¶93-464 Mazorski & Albright [2007] FamCA 52 McCall & Clark [2009] FamCAFC 92; (2009) FLC ¶93-405 Meads v Meads (2012) 543 AR 215 Moose & Moose [2008] FamCAFC 108; (2008) FLC ¶93-375 Muldoon & Carlyle [2012] FamCAFC 135; (2012) FLC ¶93-513 Mulvany & Lane [2009] FamCAFC 76; (2009) FLC ¶93-404 Murray v Pinder [2020] QSC 385 MWJ v The Queen [2005] HCA 74 N & S & The Separate Representative [1995] FamCA 139; (1996) FLC ¶92-655 Napier & Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303 Napoli & Napoli [2004] FamCA 706 Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC ¶94-017 Palmer v No Respondent [2023] VSCA 322 Pascoe & O’Keefe and Ors [2018] FamCAFC 243 Planck & Planck [2024] FedCFamC1F 341 R v Sweet [2021] QDC 216 Re Magistrate M M Flynn; ex parte McJannett [2013] WASC 372 Rossiter v Adelaide City Council [2020] SASC 61 Scordo v Commonwealth Bank of Australia [2024] FCA 359 Scott & Scott [1994] FamCA 12; (1994) FLC ¶92-457 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Sigley & Evor [2011] FamCAFC 22 Slater & Light [2013] FamCAFC 4 Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038 Tindall & Saldo [2015] FamCAFC 1 Treloar & Nepean [2009] FamCAFC 206; (2009) FLC ¶93-417 Vasser & Taylor-Black [2007] FamCA 547; (2007) FLC ¶93-329 VC & GC & Ors [2010] FamCAFC 62; (2010) FLC ¶93-434 Vigano & Desmond [2012] FamCAFC 79; (2012) FLC ¶93-509
Division:	Division 2 Family Law
Number of paragraphs:	335
Date of last submission/s:	27 May 2024
Date of hearing:	29 May-2 June 2023, 27 May 2024
Place:	Adelaide
Counsel for the Applicant:	Self Represented
Counsel for the First Respondent:	Ms Boyle
Solicitor for the First Respondent:	Adelta Legal
Counsel for the Second Respondents:	Self Represented
Counsel for the Independent Children's Lawyer:	Mr Praolini
Solicitor for the Independent Children's Lawyer:	Legal Services Commission of South Australia

ADC 3539 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR NALDER Applicant
AND:	MS CATO First Respondent MR B NALDER AND MS C NALDER Second Respondents
AND:	INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE PARKER
DATE OF ORDER:	6 JUNE 2024