Pachis & Turnbull
[2024] FedCFamC1F 420
•26 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pachis & Turnbull [2024] FedCFamC1F 420
File number(s): BRC 15185 of 2022 Judgment of: BAUMANN J Date of judgment: 26 June 2024 Catchwords: FAMILY LAW – PARENTING – Where final parenting Orders were made in September 2022 for the children to live with the father and spend time with the mother – Where the father recommenced proceedings in December 2022 after the mother withheld the children – Further final parenting Orders were made in February 2023 for the children to have no contact with the mother – Where the mother instituted further proceedings in September 2023 – Where the Court is satisfied there has been no significant change in circumstances since the final parenting Orders were made in February 2023 – Application dismissed Legislation: Family Law Act 1975 (Cth) s 65DAAA Cases cited: KKW v Queensland Police Service [2004] QDC 43
Pachis & Turnbull [2022] FedCFamC2F 1290
Pachis & Turnbull [2023] FedCFamC2F 253
Pachis & Turnbull [2023] FedCFamC1A 110
Pachis & Turnbull (No 2) [2024] FedCFamC1A 16
Rice & Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 14 June 2024 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person ORDERS
BRC 15185 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PACHIS
Applicant
AND: MR TURNBULL
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
26 JUNE 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That the Initiating Application filed 23 September 2023 be dismissed.
2.That the Application in a Proceeding filed 27 September 2023 be dismissed.
3.That the Application in a Proceeding filed 23 November 2023 be 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 the pseudonym Pachis & Turnbull has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
There is hardly a more distressing event in a parent’s life then to lose the opportunity for a continuing relationship with their children. When that occurs by reason of Court orders, it is not surprising that many parents seek to blame not only the other parent but the Court – often maintaining and initiating further applications to remedy what the distressed parent regards as a gross injustice.
These proceedings are an example of that situation, and on 14 June 2024 the Court was seized of a parenting application by the mother Ms Pachis (“the mother”) for essentially a change of residence and a recovery order, which the father, Mr Turnbull (“the father”), not only opposed but sought be summarily dismissed. At the time when the father sought dismissal (via his affidavit filed 1 December 2023) his “application” for dismissal was subsequently identified by a Senior Judicial Registrar on 26 February 2024 as suitable for a “discrete issue hearing” on the principles of Rice & Asplund (1979) FLC 90-725 and listed the matter for determination before a different Senior Judicial Registrar. Shortly before that hearing, the Application was transferred to Division 1 of this Court and on 28 May 2024, I listed the Application for a discrete hearing which took place on 14 June 2024.
Both parents are self-represented and made oral submissions, with the parties relying on the following material:
(a)The mother relied upon:
(i)her case outline filed 2 May 2024;
(ii)affidavits of herself filed 26 April 2024; and
(iii)affidavit of herself filed 23 September 2023.
(b)The father relied upon:
(i)his case outline filed 3 May 2024; and
(ii)affidavit of himself filed 3 May 2024.
During the course of the hearing before me, I identified that the father had never actually filed a formal Response to the mother’s Initiating Application filed 23 September 2023, despite being directed to do so by the Order made 30 October 2023. I infer this oversight by the father was acknowledged by the Court by the Order of a Judicial Registrar made 18 December 2023, where a notation was recorded as follows:
The Court is informed by the Respondent that his response was requisitioned as he could not afford to pay the filing fee. It is the intention of the Respondent to seek a waiver from the payment of court fees and file a response prior to the next return date.
I note that the Orders of the Judicial Registrar were subject of a Review Application filed by the mother. The Review Application was considered by Judge Demack on 10 January 2024 and dismissed. The decision of Judge Demack was the subject of an appeal by the mother. On 21 February 2024, the Full Court (Austin J) summarily dismissed the mother’s appeal (see Pachis & Turnbull (No 2) [2024] FedCFamC1A 16).
THE STATUTORY PATHWAY
As the hearing before me commenced after 6 May 2024, as I had earlier identified to the parties, s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”) applies in the following terms:
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
It may be understood that the long-standing principles beginning with the decision of Rice & Asplund (supra) have now been “codified” by s 65DAAA of the Act. I will provide some context for my decision, by recording some relevant earlier decisions of the Court.
SUCCINCT HISTORY
These parenting proceedings relate to two children of the relationship between the mother and father, namely:
(a)X born 2014; and
(b)Y born 2015.
The parents separated in January 2015, with the father re-partnering with Ms B in 2017. They were married in 2021.
As the Reasons of Judge Cassidy (as she then was) reveal (see Pachis & Turnbull [2022] FedCFamC2F 1290), the mother had unilaterally changed the children’s residence to Sydney in early 2018 and then to Perth in late 2019, causing the father (who has always lived in the Brisbane area) to file an Application in April 2020 for the children to live with him.
In August 2020, after a two day defended hearing, interim Orders were made that provided for the children to live with the father and for the children to spend four nights per fortnight and half of school holidays with the mother, provided she return to live in Region C. The mother elected to relocate to Region C in late 2020.
On 23 September 2022, Judge Cassidy made final parenting Orders in the following terms:
1.That the Father have sole parental responsibility for the long term care, welfare and development of the children, [X] born […] 2014 and [Y] born […] 2015 (herein, “the children”).
2.That the children live with the Father.
3.That the Mother be restrained from:
a. Attending at the children’s school.
b. Contacting the school either directly or indirectly.
c. Attending upon the children’s health professionals.
d. Contacting any of the children’s health professionals either directly or indirectly.
e. Taking the children to any health professional unless it is a medical emergency.
f. Having any contact with the children directly or indirectly except as provided for in these Orders.
4.That the children spend time with the Mother:
a. During the school term each alternate weekend from 9:00am on Saturday until 4:00pm on Sunday.
b. During school holidays in Easter, June/July and September/October for the first week in even-numbered years and for the second week in odd-numbered years.
c. During the Christmas holidays in week 1, 3 and 5 in even-numbered years, and in week 2, 4 and 6 in odd-numbered years.
5.That all changeovers shall occur at a contact centre or private contact changeover provider within 20 kilometres of where the Mother resides.
6.That the Mother nominate to the Father her preferred contact centre/provider within 7 days and notify the Father using the “Our Children” website.
7.That the Mother pay all costs for the changeover at the contact centre/provider.
8.That the Mother and Father be at liberty to provide the Family Reports, Reasons for Judgment, and any expert evidence to any treating health professional of either the children or the parents.
9.That the Mother and the Father communicate about changeovers only and information in Order 10 using the “Our Children” website.
10.That the Father shall provide to the Mother:
a. Copies of the children’s school reports within 7 days of receipt of the report.
b. Any medication the children may require while spending time with the Mother.
c. Information about any serious illnesses the children might be diagnosed with.
11.That each party be restrained and an injunction issue restraining either party from denigrating the other in the presence of the said children or from allowing the said children to remain in the presence of any other person acting in such a way.
12.That the Independent Children’s Lawyer be discharged, save for any appeal.
The effect of the Orders were that X and Y, who began living with the father from August 2020, were to continue to live with the father, with the children spending unsupervised time with the mother alternate weekends and half of school holidays.
The continued disillusionment of the mother with these Orders did not cause her to appeal the Orders of 23 September 2022.
Rather, after the mother withheld the children on 2 December 2022, the father commenced proceedings seeking not only the return of the children to him but that orders be made for the children to spend no time with the mother. The mother continued to press for orders that the children live with her, such that these proceedings ultimately came before Judge Vasta for final hearing on 28 February 2023. In ex tempore Reasons for Judgment delivered at the conclusion of that final hearing, those Reasons being published (see Pachis & Turnbull [2023] FedCFamC2F 253), Judge Vasta made the following orders:
1.The father have sole parental responsibility in respect of all major long term issues of the, [X] born […] 2014 and [Y] born […] 2015 (“the children”).
2.The children live with the father.
3.The children spend no time with the mother.
4.The children have no contact whatsoever with the mother.
5.Pursuant to s 121 of the Family Law Act 1975 the father be at liberty to provide a copy of this Order and the Reasons for Judgment to any health or educational professional involved in the care or education of the children.
6.The Independent Children’s Lawyer be discharged.
The Reasons of Judge Vasta revealed the mother’s continuing allegations against the father, the father’s wife, the children’s school and judicial officers of the Court (see paragraphs 26 and 27), before making the following critical findings:
(a)At [54]:
Like Judge Cassidy, I accept the diagnosis that the children are on the autism spectrum and suffer from ADHD. I find that the children should be medicated for the reasons that Her Honour espoused. I accept that the mother will not ever accept this diagnosis. I accept also that the mother will not ever administer the medication...
(b)At [76]:
I find that the hatred and disrespect that the mother shows for the father is palpable. Like Her Honour, I also note that a person must actually be present in the courtroom and hear and see the manner in which the mother reacts to truly gauge the level and extent of her hatred.
(c)At [77], “[t]he mother will never accept any decision that sees her not having full control of the children”, for the reasons that Judge Vasta identified.
(d)When referring to an oral attack the mother made against Counsel for the Independent Children’s Lawyer, Judge Vasta noted at [80] that:
But [Mr D] is not the only person who has been personally attacked; it seems principals, medical professionals, social workers, and others, are all fair game for the mother. She will make whatever accusation that she feels like making, without a skerrick of evidence.
(e)Before finally concluding at [81] and [82] that:
81.This continued stance by the mother puts pressure on the children, and places them directly in the middle of any dispute that she has with the father. Whilst Judge Cassidy had hoped that this would abate, time has proven that the mother will never be able (sic) accept anything that is other than how that (sic) she believes things should be.
82.It is an extremely drastic step for a Court to order that a parent spend no time with a child, but this is the position which the Court finds itself. It is the only decision that the Court can make in discharging its statutory duty to make parenting orders “in the best interests of the children”.
As the mother was perfectly entitled to do, she appealed the Orders of Judge Vasta on a number of grounds, including a failure of Judge Vasta to afford the mother a fair hearing; alleged prejudgment and bias; ineffective assistance of Counsel; and evidentiary rulings made (or not made) during the hearing. The Full Court (Tree J) dismissed the mother’s appeal, concluding that the appeal was “wholly devoid of merit and should never have been brought”. The mother was ordered to pay costs of the Independent Children’s Lawyer (see Pachis & Turnbull [2023] FedCFamC1A 110).
Completely undaunted by the Full Court decision made 10 July 2023, the mother filed a fresh Application seeking “primary custody” on 23 September 2023. That is essentially the Application now before the Court.
THE CURRENT APPLICATION
In support of the mother’s current Application, her voluminous material continues to assert a number of the allegations made before Judge Vasta (the critical last decision) and in appeal hearings before Austin and Tree JJ.
To continue to record the mother’s assertions is to in some way give them publication and, she might say, veracity. Sadly, it seems that some of the mother’s more recent allegations are becoming more bizarre and troubled – again mere assertions without any real probative evidence, including (from the affidavit filed 26 April 2024), including that:
(a)the orders have placed the children in the care of a “woman basher and a “mentally unstable male” (paragraph 11C);
(b)the children “may have sexually transmitted diseases (STDs) which have been potentially transmitted by sexual abuse or by accidental contact” from the father and his wife (paragraph 11F);
(c)the children are living in an “unsafe environment with pedophiles [sic]” and says “while the parties were on the phone during a court proceeding Y screamed out in the background ‘we are still getting raped’” (paragraph 11M); and
(d)In the mother’s second affidavit filed 26 April 2024, “there is clear sufficient evidence of the ‘child abduction’” (paragraph 3).
And from the affidavit filed 23 September 2023, including:
(a)assertions that Judges and Senior Judicial Registrars have been arrested.
(b)all presiding Judges “have been found by authorities to be pedophiles [sic]”;
(c)a Judge instructed the Australian Federal Police to break into the mother’s house and assault her and “bug” her apartment;
(d)sexually impropriety involving Judges, Associates, Registrars and Registry staff; and
(e)the Independent Children’s Lawyer is a “cannibal” and assaulted her and took her “to the local morgue to put me into the furnace”.
The mother asserts she has “no mental health issues” at paragraph 26 of her second affidavit filed 26 April 2024.
As distressing as it must be for the father to continue to be dragged back to Court to defend himself and his wife, his affidavit filed 3 May 2024 seeks to do so. In an attempt to corroborate his position that no material change in circumstances has occurred since Judge Vasta’s decision of 28 February 2023, the father:
(a)annexed a decision of District Court Judge Porter KC delivered early 2024 (KKW v Queensland Police Service [2024] QDC 43), where Judge Porter dismissed an appeal by the mother against a decision by a State Magistrate granting the father a Protection Order and dismissing the mother’s cross application. The Reasons for Judgment referred to the mother’s “allegations against everyone involved in this matter” as “a fantasy” at [17]. In the final paragraphs of the Judgment, Judge Porter KC refers to the mother’s actions having “reached the stage of the most egregious abuse of Court processes” (at [19]) and the appeal being “vexatious” and that “[i]t had no prospects of success. It involved repetition and exaggeration of scurrilous allegations” (at [21]); and
(b)produced school records for the children for semester two 2023, with teachers noting excellent behaviour and academic results.
CONCLUSION
I am satisfied that nothing I say in these Reasons will satisfy the mother. I expect, not only that she will appeal my decision, but there is every likelihood I will now be accused of personal or judicial conduct of a similar nature that has been asserted about other judicial officers.
That the mother sought to rely upon the well-publicised decision of a single Federal Court Judge relating to Judge Vasta, is an example of the depths she is prepared to go to assert everyone, but herself, has a responsibility for the sad situation where she has not spent any time or communicated with her children.
That she continued to assert before Judge Porter KC in early 2024 what appears to be largely similar allegations to those dealt with by Austin J on 10 January 2024, despite Austin J’s clear admonishment (see in particular [14] and [18]), speaks volumes.
I am satisfied there has been no significant change in circumstances since the final parenting Orders were made by Judge Vasta. I further find the children are likely to suffer potential detriment, if the final parenting Order was reconsidered on the evidence before me (although untested) because they would be likely to be exposed to the mother’s unfiltered allegations against, particularly, the father. Furthermore, nothing relied upon by the mother establishes any likelihood, at this time, of different parenting orders being made.
For these reasons, the mother’s Application filed 23 September 2023 shall be dismissed.
I discussed with the father a matter he alluded to seeking by his affidavit (with no Response or cross Application filed by him) – namely an order that the mother be restrained from commencing new proceedings without leave of the Court.
In the absence of any such application, including that the mother was entitled to be offered procedural fairness before such an order was made, I felt it was not appropriate to launch into an oral application or even as may be available under the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth), initiate such an application by the Court.
Depending on the mother’s further reaction to the dismissal of this Application by her, that issue may ultimately need proper consideration.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 26 June 2024
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