PHILKIN & PHILKIN

[2020] FamCA 293

FAMILY COURT OF AUSTRALIA

PHILKIN & PHILKIN [2020] FamCA 293

FAMILY LAW – CHILDREN – Interim orders – multiple applications in a case filed by the father – where father’s time with the children has been suspended – where father sought orders for the removal of Independent Children’s Lawyer – no evidence of actual or perceived bias by Independent Children’s Lawyer – no merit in the father’s applications – applications dismissed.

Family Law Act 1975 (Cth) ss 62G, 67Z, 68L(2)

APPLICANT: Ms Philkin

RESPONDENT: Mr Philkin

INDEPENDENT CHILDREN’S LAWYER: Robert Halliday And Associates

FILE NUMBER: DGC 2894 of 2018

DATE DELIVERED: 1 May 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE: 8 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mansfield

SOLICITOR FOR THE APPLICANT: Ryan Carlisle Thomas

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Metaxas

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday And Associates

Orders Made 8 April 2020

1. All extant applications for final orders be adjourned for hearing before Justice Hartnett on 13 July 2020 at 10.00am (as a seven day matter.)

2. By 4.00pm on 8 June 2020 the Applicant file and serve upon all other parties:-

   (a)       an amended application setting out with precision the orders to be sought;

   (b)       the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave); and

   (c) a financial statement that complies with Chapter 13 of the Family Law Rules 2004 (Cth).

3. By 4.00pm on 22 June 2020 the Respondent file and serve upon all other parties:-

   (a)       an amended response setting out with precision the orders to be sought;

   (b)       the affidavits of evidence in chief of all witnesses relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave); and

   (c) a financial statement that complies with Chapter 13 of the Family Law Rules 2004 (Cth).

4. By 4.00pm on 29 June 2020 the Applicant file and serve any affidavit in reply to the affidavits of the Respondent.

5. By 4.00pm on 29 June 2020 the Independent Children’s Lawyer file and serve any affidavit to be relied upon.

6. No party file any further material other than as provided by these orders without leave of the Court.

7. If either party takes objection to any evidence of the other party:-

   (a)       any objection be taken no later than fourteen days prior to the trial by service of written notice on the solicitor for the other party;

   (b)       the party so served shall notify the objecting party in writing no later than 7 days prior to the trial of which objections so taken are the subject of agreement and which require determination.

8. All parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

9. All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

10. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

11. The Applicant pay all setting down and trial fees by 4.00pm on 10 July 2020 or obtain the requisite waiver thereof.

12. The practitioners and/or the parties in the event that they are not legally represented file and serve electronically and send a copy to … by 4.00pm on 7 July 2020 the following:-

    (a)       a concise set of orders to be sought if different from those already filed;

    (b)       a list of the applications and affidavits filed pursuant to these orders to be read and, if not the whole affidavit, the relevant pars relied upon;

    (c)       a list of the parties’ respective legal and equitable interests in property and liabilities;

    (d)       a list of objections to evidence upon which rulings are required, if any; and

    (e)       a bullet-point summary of argument in relation to the legal and factual issues in dispute.

13. Each party provide to the Court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.

14. The practitioners and/or the parties in the event that they are not legally represented be at liberty to approach Justice Hartnett’s Associate via email for an urgent listing of the matter if required.

AND THE COURT NOTES THAT:

A.This hearing will be required to be conducted with the litigants and lawyers in person, in the courtroom. The Respondent is a litigant in person and the matter is not one suitable to be conducted via Microsoft Teams.

Orders Made 1 May 2020

1. The father’s applications in a case filed 19 February 2020, 26 February 2020 and 6 April 2020 are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Philkin & Philkin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)..

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2894 of 2018

Ms Philkin

Applicant

And

Mr Philkin

Respondent

REASONS FOR JUDGMENT

Preliminary

1. This matter came before the judicial duty list and by telephone hearing on the application of the Respondent father (‘the father’), who filed three Applications in a Case after the matter was last before the Federal Circuit Court of Australia on 7 February 2020.  Although the father claimed that the courts had been able to afford him little time to date, they have, in fact, applied considerable resources to this particular proceeding. I shall in short compass attempt to set out the more pertinent history as to the parenting orders proceeding to date. Factual matters in dispute are not able to be determined by the Court at the present time, those matters not having been tested.  

2. The proceeding commenced in the Federal Circuit Court of Australia on 22 August 2018 on an Initiating Application filed by the Applicant mother (‘the mother’). The proceeding involves both parenting orders and property orders as sought by each of the parties. When the mother commenced the proceeding, she did not particularise the final orders as sought by her, seeking to delay that particularisation with respect to final parenting orders until such time as a s 62G of the Family Law Act 1975 (Cth) (‘the Act’) family report had been undertaken by a qualified family consultant. Likewise, the mother sought to be excused from particularising the final property orders sought by her until such time as the father had provided full and frank disclosure.

3. The mother did seek both parenting and property interim orders. As to the parenting orders, she sought equal shared parental responsibility of the parties’ children, Z, born on in 2007, who is now 13 years of age; Y, born in 2009, who is now 11 years of age; and X, born in 2012, who is now eight years of age (‘the children’). She sought, relevantly, that the children live with her and spend time with their father from 10.00am until 6.00pm each Sunday; the preparation of a s62G of the Act report and the appointment of an Independent Children’s Lawyer. The mother also sought, in August 2018, that the father attend upon a psychiatrist as nominated by the Independent Children’s Lawyer for the purpose of the preparation of a report to provide an assessment as to his psychiatric functioning and its impact, if any, on the children. In respect of the property orders as sought by the mother, she sought the father be excluded from the former matrimonial home and that she and the children continue to reside in that home. She sought spousal maintenance and discovery.

4. The father, in the filing of his Response on 21 June 2019, also sought interim equal shared parental responsibility of the children; the preparation of a s 62G of the Act family report; and the appointment of an Independent Children’s Lawyer. He sought, however, that the children live with him and that the mother’s time with them be supervised at times as agreed between the parties. He sought, on a final basis, that he have sole parental responsibility for the children and that the mother spend time with them each Sunday from 10.00am until 6.00pm. In respect of the property orders as sought by the father, he sought, as an interim order, for the parties’ to attend a private mediation. Otherwise, he sought to be excused from particularising final orders until such time as full and frank disclosure had been provided by the mother. Other orders were sought by each of the parties in their respective applications, but the orders highlighted are the relevant ones for the purposes of these reasons.

5. Each of the parties filed a Notice of Risk pursuant to s 67Z(2) of the Act, the mother on 22 August 2018, and the father on 21 June 2019. The mother alleged that the children had witnessed the father perpetrate family violence against her by way of physical, verbal, and financial abuse, which included constant threats to leave the mother and children with nothing. The mother also alleged that the Department of Health and Human Services (‘the DHHS’) Suburb B had become involved with the family after the father had reported to the DHHS that the mother was exposing the children to pornography. The mother claimed, that upon investigation, the DHHS found that the children were not at risk of being exposed to pornography, but they were at risk of being exposed to the father’s family violence toward the mother.

6. The father, in his Notice of Risk, alleged that the children had witnessed the mother perpetrate family violence upon him by way of physical, emotional and verbal abuse, and that the mother had neglected the children by leaving them at home by themselves without proper care or food. The father also claimed the children were suffering serious psychological harm and serious neglect in the mother’s care, and noted he had reported his allegations to an external authority.  In fact, he had reported his allegations to more than one external authority, being the police child welfare authority and a medical practitioner.  The father alleged further that he was concerned about the use of alcohol in the mother’s home; that her parental incapacity resulted in her not taking the children to school;  that he was concerned about the state of the home in which the children lived; and that he was concerned about the food supplied to the children by the mother. The father noted that he was listed as an affected family member in an intervention order application then on foot, which was returning to the Suburb B Magistrates' Court on 24 June 2019. 

Background

1. The mother was born in 1976 and is now aged 43 years.  The father was born in 1969 and is now aged 50 years.

2. The parties met in 2001 and commenced their cohabitation in that year.  They married in 2008. Prior to the parties meeting, the mother had a child from another relationship, namely Mr C, who was born in 1996 and who is now aged 23 years. The mother alleges that separation occurred between the parties in 2015 although they continued to live separately under the one roof. The father concurs, as to the parties living under the one roof until at least March 2018 but his assertion as to the date of separation is unknown.   

3. At the time of the parties’ physical separation, by at least 1 June 2018, the mother was engaged in home duties and the father was employed with D Company.  The mother commenced to receive a single parent pension together with family tax benefits. There was a child support assessed amount calculated with the father as the paying parent in the sum of $488 a month. The mother alleges the father failed to pay any such amount. The father was in receipt of a total average weekly income of $1,936 gross in respect of his employment, as deposed to by him in his financial statement filed 21 June 2019.  On 10 October 2019, orders were made in the Federal Circuit Court requiring the father to pay to the mother $250 each week by way of spousal maintenance. The mother alleges the father has made no payments pursuant to those orders. She also claims that significant arrears of child support are now owing.

4. The children Y and X attend GG School.  X is in year three and Y is in year six and has been appointed school captain. The child Z attends H School in Suburb L and has commenced a ‘RESET’ program. The mother has worked with the schools; the Department of Education and Training Victoria (‘the DET’); and JJ Services to ensure that Z goes to school. 

5. The father has been in a relationship with a Ms M since either October or December 2017. He lives in rental accommodation situate at HH Street Suburb F which is approximately 3.5km from the mother’s home. The father states in his affidavit evidence, that his current accommodation has no carpets, no plaster and has been burnt from two fire events in January 2018. After a rejected insurance claim, it remains in this condition.[1]

   [1] Affidavit of Mr Philkin filed 26 February 2020, [12].

6. The mother is in a relationship with a Mr N. She denies the father’s allegations that Mr N is violent toward the children.

7. On 31 May 2018, and on notification from the father, as asserted by him, the children were interviewed by the DHHS.  Child Protection determined that there were some protective concerns in relation to the child X and was working, by agreement with the family, to address those concerns. The permanency objective of the case plan of the DHHS was “family preservation” and for X to “remain in parental care”.[2] The DHHS determined that X would live with her mother.  The case plan noted, relevantly, that:-

   Mr Philkin … has expressed varying views in relation to the children’s safety in the care of Ms Philkin. Mr Philkin’s concerns have been investigated and at this time those concerns have not been substantiated.

   Concerns in relation to the children’s exposure to family violence have however been substantiated as it was assessed that the children had been emotionally and psychologically harmed and have been at risk of physical hard [sic], due to their exposure to family violence perpetrated by their father Mr Philkin. 

   [2] Annexure ‘M-1’ to the Affidavit of Ms Philkin sworn 22 August 2018.

8. The DHHS were encouraging of the mother seeking a final intervention order against the father, to include an order for exclusion of the father from occupation of the former matrimonial home. The DHHS assessed the children required their home to be a safe, stable and predictable environment, free from family violence. 

9. The case plan of the DHHS, as it applied from 11 July 2018, included “that the children’s contact with the father, Mr Philkin should be dependent upon the children’s wishes as they have expressed varying feelings in relation to contact.”[3]

   [3] Annexure ‘M-1’ to the Affidavit of Ms Philkin sworn 22 August 2018, [2].

10. The DHHS noted also that concerns had been “raised in relation to the children’s home environment and school attendance”,[4] but found there was then nothing to suggest that those issues were current for the children. No concerns were observed in relation to the children’s physical presentation or home environment with their mother which was assessed as “above minimum standard.”[5]

    [4] Annexure ‘M-1’ to the Affidavit of Ms Philkin sworn 22 August 2018, [2].

    [5] Annexure ‘M-1’ to the Affidavit of Ms Philkin sworn 22 August 2018.

11. On 1 June 2018, the mother obtained an interim intervention order in the Magistrates’ Court at Suburb B, being an ex parte order, which precluded the father from going to or remaining within 200 metres of the former matrimonial home at FF Street Suburb F in the State of Victoria, and which precluded him from contacting, or communicating with, a protected person by any means. The protected persons were the mother and three children.

12. On 3 July 2018, the intervention order proceeding (referred to above) was resumed. By that time, the father had been served with a copy of the application and summons and the intervention order.  On the return date, the parties agreed that notwithstanding the terms of the intervention order, the children would spend time with their father each Sunday between 10.00am and 6.00pm.

13. On the application of Victoria Police, an application for an intervention order was made also against the mother, to be heard at the Suburb B Magistrates' Court on 17 December 2018. The affected family member was the father.  No children of the affected family member or the mother were included in the application. The allegations in the application were that between 21 August 2018 and 1 September 2018 the mother had sent to the father a number of harassing messages. Further alleged harassing behaviour was detailed, and the application stated “Police believe a limited intervention order is required to protect the AFM from any further harassment.”[6]

    [6] Annexure ‘F-2’ to the Affidavit of Mr Philkin affirmed 18 June 2019.

14. This proceeding then came before the Federal Circuit Court of Australia sitting at Dandenong on 5 November 2018. The proceeding was initiated on application of the mother. Her Honour Judge Small made orders as follows:-

    1The Applicant Wife be granted leave to serve the Respondent Husband by way of substituted service to his email address at ... and by SMS text message to his mobile telephone at ….

    2The matter be adjourned to the duty list on 12 March 2019.

    (Hyperlink omitted)

15. The matter again returned to that court on 12 March 2019, where it was further adjourned to 31 May 2019 for mention. The father was to make, file and serve a Response, affidavit in support, Notice of Risk and Financial Statement prior to the adjourned hearing date. On 31 May 2019, Her Honour Judge Mercuri adjourned the proceeding further to 18 July 2019, and again ordered the father to partake in the proceedings by filing and serving a Response, affidavit in support, Notice of Risk and Financial Statement. Pursuant to s 68L(2) of the Act it was ordered the children be separately represented. The mother’s cost of the day were fixed in the sum of $1,300 and reserved. The court noted on that occasion that in the event the father failed to file material in accordance with the orders, the mother could seek leave to proceed on an undefended basis.

16. The father complied with the procedural orders filing a Response, affidavit and Notice of Risk on 21 June 2019. In response to the Notice of Risk filed by the father, the DHHS provided information to the court in a report dated 17 July 2019.  In the statement of child protection history, the DHHS set out a series of intake reports, which commenced in 2012. Those reports noted that the mother had sought an interim intervention order in January 2016 against the father, with the father being reported to be verbally abusive and exhibiting controlling behaviours toward the mother.  That interim intervention order was granted. No full intervention order was thereafter made, with the mother not pursuing the proceeding. Under the heading “Assessment”, the DHHS noted that the Victorian Child Protection Department, as managed by them, had been aware of the family since 2012, with over 10 documented concerns reported during that period to the time of the making of the report.  The DHHS recommended that the children remain in the primary care of their mother and that, in relation to time spent between the children and their father, there be a transition plan in line with the children’s wishes. The DHHS recommended that the mother engage with an in-home parenting service to address the impact of family violence on her and the children, and that further parenting issues needed addressing around boundaries, routines and appropriate responses to the children’s needs as they also managed the emotional impact of exposure to family violence. 

1. In its July 2019 report to the court the DHHS further recommended the children and mother would benefit from therapeutic support to address the impact of exposure to long-term family violence. It was acknowledged that the relationship between the children and their father needed to be supported in a safe and child-focused manner. Under the heading ‘Assessment’ the DHHS noted:-

   The Father is reliant and insistent that services address his concerns about the Mother’s parenting yet has not been able to demonstrate at times when he has had contact with the children he is able to parent appropriately, such as providing adequate supervision given he left the children alone for example, with their friends whilst he was at work. The Father appears blaming of the Mother, shirking responsibility for ensuring his children are always safe instead reporting he is out of the State or at work most times.

   It appears that because of the methods used by the Father to manage his parental concerns with Y and X’s school it has resulted in the disruption to the children’s education.  The Father has irreparably damaged his children’s relationship with school as school have excluded the younger children as they can no longer tolerate the father’s level of complaints and demands for information and threats of litigation.

   There is a history of the children being reluctant to attend school especially X and it is particularly concerning when you have a child who already struggles to attend school to have to readjust to a new environment.  The impact on Y was evident as she expressed her distress stating she was not attending any other school. The father’s presentation, albeit non-intentional, can be interpreted as aggressive and therefore limits his ability to achieve positive outcomes when attempting to address his parental concerns.

   The Father and the Mother appear reluctant to engage with services to address their parenting challenges. There has been limited engagement with the department with neither parent engaged in a meaningful way with services offered in the community around addressing Family Violence and parenting.

   Information ascertained from professionals identify the Mother as appropriately concerned for her children’s school attendance.  School have raised no concerns regarding mother’s care of the children and have found her to be engaging, and confirmed that the Mother and the children were engaged with the psychologist at the school.

   When interviewed the children have named they feel unsafe and unhappy when father was present in the home sighting [sic] the verbal arguments as being distressing and having confirmed family violence occurred when father was in the home.  The children have also named feeling safe with mother.  The parent’s decision to separate and then reunify over the years will have caused confusion and distress to the children especially as parents have had to live together at times due to financial issues which would have placed a burden of stress on the household.

   It is acknowledged that the mother has also not engaged with support services to address Family Violence and parenting issues such as getting the children to attend school however it is apparent that the Mother is a victim of significant family violence in the form of emotional abuse.  The impact of the Father’s behaviour around emotional and verbal violence is likely to have impacted on the Mother’s mental health with mother at times presenting as flat in effect and finding it difficult to engage with support services. The Father’s behaviours distract attention to the Mother’s capacity to focus on her own emotional needs and then being able to address the children’s care needs.

   In the same respect the Father has also not engaged with services to address his behaviours around Family Violence and parenting, instead choosing to be invisible in the parenting role and focusing his energy on denigrating the Mother’s parenting.  It is more beneficial to the children if the Father moved towards working in collaboration with the Mother around boundaries and parenting, therefore supporting consistent and predictable parenting responses to the children’s needs through their ages and stages of development and the best interest of the children.

   Regarding a recent report to the department relating to the emotional impact on Z, Y and X relating to Family Violence between the parents, the concerns have been substantiated.  The Mother and the father are identified as being responsible for harm occurring to their children, due to lack of meaningful change and engagement with services to address their parenting needs, and for the Father and Mother to understanding and addressing the long-term impact of violent behaviours on their children.

2. On 18 July 2019 orders were made in the Federal Circuit Court that the children live with the mother and spend time with the father each alternate weekend from the conclusion of school Friday to the commencement of school Monday, and after school Wednesday to the commencement of school Thursday.

3. Between 2 September 2019 and 12 October 2019 the father had no face-to-face contact with the children as directed by the DHHS.  Nevertheless during that time the mother alleges the father consistently bombarded the children with text messages demanding to know where the mother was, and where the children were.  The father also contacted the police, and the family was subjected to multiple welfare checks from the police at the father’s instigation.

4. On 26 September 2019 orders were made in the Federal Circuit Court which suspended the father’s time with the children. 

5. On 10 October 2019 agreement was reached between the parties for the children to return to spending time with the father in accordance with the orders made on 18 July 2019.

6. On 23 October 2019 the mother filed a Further Application in a Case seeking the father’s time with the children be suspended, given the father’s behaviour was becoming increasingly erratic and volatile as alleged by her. It is alleged the father had made, by that time, a threat to physically harm the Independent Children’s Lawyer. That alleged threat, denied by the father, coupled with the father’s alleged fluctuating and harassing behaviour again denied by the father, scared the mother.

7. Following transfer of all extant applications to the Court by Her Honour Judge Stewart on 7 February 2020, Registrar George made orders in respect of the parties’ property order proceedings and otherwise listed the father’s then interim parenting applications into the Court’s duty list of 8 April 2020. The mother was required to file and serve responding material to the father’s interim applications by 20 March 2020.  Registrar George noted that some of the orders sought in the father’s interim applications should more properly have been the subject of an appeal. The interim applications at the time of the hearing before Registrar George were two in number.  They were an Application in a Case filed by the father on 19 February 2020, and an Application in a Case filed by the father on 26 February 2020.

8. The father filed further parenting applications, being Applications in a Case filed on 6 April 2020 and 3 April 2020, the latter as claimed by him.  There was no record before the Court of an Application in a Case filed on 3 April 2020. In support of the three extant applications, the father sought to rely upon affidavits filed by him on 19 February 2020, 26 February 2020, 5 April 2020, 6 April 2020, 7 April 2020, and a second affidavit of 5 April 2020. The Independent Children’s Lawyer relied upon an affidavit affirmed by the Independent Children’s Lawyer on 7 April 2020, and the mother relied upon an affidavit affirmed by her on 20 March 2020.

9. Suspension of the father’s time, as referred to above, has resulted in the father making multiple daily demands and requests to spend time with the children which the mother, as a claimed by her consequence of the emotional strain caused by the relentlessness of the father allowed, on occasion, between 15 December 2019 and 14 January 2020. The mother’s evidence is that throughout these proceedings the father has been belligerent in bombarding her, the children, her lawyers and the Independent Children’s Lawyer with his demands, threats, and intimidation tactics.[7] She has been overwhelmed by his conduct which has impacted on her decision-making in allowing him to spend time with the children. I note again that the allegations and claims made by the parties as described as such in these reasons, are matters as to which the Court cannot yet make a finding. Otherwise the matters stated herein are not in dispute and in particular, the father himself puts such evidence before the Court and/or does not disagree with what is asserted.

   [7] Affidavit of Ms Philkin affirmed 20 March 2020, [47].

The Hearing of 8 April 2020

1. As indicated to the father on the hearing of this matter on 8 April 2020, his Application in a Case of 19 February 2020 contained many orders sought that were in the nature of an appeal against already existing orders; were in the nature of seeking to make orders against third parties who were not parties to the proceedings; were in the nature of submissions, in many instances without evidentiary basis; and were in the nature of directions to the Independent Children’s Lawyer to perform certain tasks at the request and upon instruction of the father.  The orders sought also bore no relationship, in a number of instances, with the operative orders of the Federal Circuit Court of Australia which governed, to that time, current parenting matters as between the parties. 

2. The Application in a Case filed by the father on 26 February 2020 was equally objectionable, in part nonsensical, and sought orders beyond jurisdiction. The orders as sought in the Application in a Case of 19 February 2020 and 26 February 2020 suggest that the father is vexatious. The Court indicated to the father that the bringing of such applications before the Court with voluminous material could result in an application being made to the Court for him to be declared vexatious, or for the Court to, of its own motion, make such an order. 

3. The Court indicated to the father that he needed to put before the Court relevant matters to seek orders which could be made by the Court as between the parties to this proceeding, and to not engage in the canvassing of irrelevant matters.  The orders sought to direct the Independent Children’s Lawyer to carry out certain tasks required of the Independent Children’s Lawyer by the father were entirely misguided and inappropriate. Whilst I do not propose to canvass each of the orders sought in those two Applications in a Case, as the Court has determined to dismiss those applications, I shall, for the benefit of the litigant in person father, set out some examples of “orders” that should not be sought. The father sought the following “orders” (taken from the Application in a Case filed 26 February 2020):-

   1. To refer the mother for perjury at the hearing of 7 Feb 2020 and soon afterwards by texting the father allowing access to the children after blatantly saying in court the children don’t want to see me. This has happened on multiple times and then texts me to say the children want to see me (twofaced).

   2. To order the ICL to pay me compensation as the court sees fit for acting in collusion with the mother and being complicit in the perjury.

   3. To refer the ICL for perjury in relation to his affidavit and persistent application stating that I had telephoned and spoke to him and threatened to hit him when we have never ever spoken at all;

   …

   5. Contraception to be prescribed for Z and a Doctors medical report as a result of the incident of Z and a 19 year old staying in my house when I was in Country KK and which I reported to the Police.

   [The Court notes that the father alleges in paragraph 15 of his affidavit filed 5 April 2020 that “Z is only 12 and I was disgusted to hear allegations by friends in the local area that she is pregnant and to see photos of her with up to 6 cigarettes in her mouth, and older males in her bedroom.”]

   …

   7. To order a new report from the Family Consultant as the writer has used bias in the remaining report by virtue of item 4. In addition, there are other statements in the report that are inaccurate; in relation to the children not wanting to stay with the father, this is as a result of the current condition of the father’s accommodation which is not habitable. The children prefer to remain in the family home which is the father’s home.

4. Further “orders” as taken from the Application in a Case filed 19 February 2020 were as follows:-

   1. To order the ICL to obtain a criminal check and psychiatric assessment of Mr N also known as Mr Q due to escalating violence against Y in her home at FF Street Suburb F.

   …

   5. To order that the mother does not dispose of or kill and ensure that Mr Q not have any contact with Y and is restrained from killing her pet puppy dog LL as threatened and which I purchased and I witnessed Ms Philkin kick the dog in front of me on 2 Sept 2019 at 130pm in my lounge room and FF Street.

   …

   8. To order a psychiatric assessment of Mr C who is the alleged responsible adult looking after the children in the absence of the mother as he does not have the skills to cook and provide for the children as they say they are hungry in his care, or supervise them or provide medical treatment when necessary as an ambulance was called by the children to the house to treat injuries for Z when the mother was interstate in Queensland on 4^th Nov 2019 with the boyfriend, without the knowledge of the Father as complained to me by the children.  Mr R [sic] has never worked and dropped out of school in year 9 which is additional basis for the order.  I was also advised the mother was also interstate … for her birthday.

   …

   10. To order a determination of wilful child neglect by the mother and also by the DHHS as well them causing a miscarriage of Justice…

   11. To order that zero weight be considered to any ICL or DHHS report as the mother has convinced all the authorities that the father has committed family violence when in fact it is Mr Q who has and the mother herself has a full order against her where police are the applicant and where the ICL and DHHS are silent on this. The ICL and DHHS have been asleep at the wheel and failed to carry out competent investigations to the point that they are criminally negligent as there is nothing that I have discovered that they could not as they claimed to have interviewed the children, and have access to records that I have also.

5. The orders sought in the Application in a Case filed by the father on 6 April 2020 included:-

   a)that the children are to:-

   “have unsupervised unlimited and unconditional access to their father on compassionate, medical and health and safety grounds since 16^th March 2020 the Premier of Victoria declared a state of emergency due to covid-19 virus so that services can make available to them by health professionals without delay if necessary which is a matter of life and death.”

   (The father sought such order on both a medical and educational basis.)

   b)for MM Service to pay the father “compensation and punitive damages of $150,000 for misleading the court and Father that visits can occur and concealing the 9 month waiting period for visits which was foreseeable.”

   c)“for the ICL to pay the father compensation punitive damages of $150,000 for being aware of” the waiting period with MM Service and “yet putting the option of supervised visits from MM Service before the courts.”

   Again, the orders as sought by the father are not in proper form, are nonsensical, are beyond jurisdiction, and simply inappropriate. 

6. In respect of the allegations the father makes about the dog, LL, the mother’s evidence is that the father gifted Y a rescue dog whom she called LL.  The dog was given to Y without the mother’s knowledge or consent.  She repeatedly requested that the father remove the dog from the former matrimonial home, and the father refused. The Royal Society for the Prevention of Cruelty to Animals (‘the RSPCA’) attended upon the former matrimonial home in January 2020 saying they had received reports that LL was being mistreated.  It is the mother’s belief, an evidentiary matter requiring testing, that the father made a false report to the RSPCA. Upon the RSPCA attending the house, interviewing the mother and observing the dog, the RSPCA were satisfied the dog was being properly cared for as claimed by the mother.

7. The father’s response to the Court when advised of the difficulties with his various applications was that, in essence, all he sought were orders for the removal of the Independent Children’s Lawyer in these proceedings, and that he be able to see his children. 

Removal of the Independent Children’s Lawyer

1. I shall deal firstly with the issue of the removal of the Independent Children’s Lawyer.  That application will be dismissed, and the Independent Children’s Lawyer, being Mr Robert Charles Halliday, will remain in the proceedings.

2. In respect of the Independent Children’s Lawyer, the father says he “has given the ICL 250 chances and he has blown every one.  I placed an embargo on him.  He is a slow learner.  He must go.”[8]

   [8] Affidavit of Robert Charles Halliday filed 7 April 2020, [16].

3. Mr Halliday’s evidence is as contained in his affidavit filed 7 April 2020.  He was appointed by Victoria Legal Aid pursuant to the order of the Federal Circuit Court made 31 May 2019.  He is an accredited specialist in family law, and has been an Independent Children’s Lawyer for in excess of 20 years.  He noted, in paragraph 3 of his affidavit, that the father alleged in his affidavit material that the Independent Children’s Lawyer had not had the children’s welfare as a paramount concern. The father referred in that regard to the children’s lack of school attendance under the “watch” of the Independent Children’s Lawyer (as the father described it), the father blaming the Independent Children’s Lawyer for what the father determined was poor school attendance, in relation to which the Independent Children’s Lawyer should have acted.

4. The evidence of the Independence Children’s Lawyer is as follows:-

   a)that the father has repeatedly requested the Independent Children’s Lawyer to “enforce” the children’s attendance at school.  The Independent Children’s Lawyer has written to the father on a number of occasions to tell him that the Independent Children’s Lawyer does not have jurisdiction to enforce the children’s attendance at school;

   b)the Independent Children’s Lawyer has spoken with the principals and, in some cases, the teachers of the children’s schools in relation to the children’s progress and welfare.  Furthermore, the Independent Children’s Lawyer has issued subpoenas to produce documents directed to the children’s schools, being the GG School, T School and K School; and

   c)the Independent Children’s Lawyer has spoken to Ms P, team manager at the DHHS on a number of occasions in relation to the children’s welfare and ongoing school attendance.

5. The Independent Children’s Lawyer first met with the children on 17 November 2019 and discussed the schooling of each of the children with each of them.  His evidence is that the two younger children’s enrolment at T School finished at the end of second term 2019.  The younger children spoke about missing their friends and schooling at T School. They seemed to have settled into their new school, being GG School.

6. In paragraph 10 of the Independent Children’s Lawyer’s affidavit he deposed to the following:-

   The principal of T School’s, Mr V wrote to the Father in or about 6 June 2019 to put the father on notice that “any further threats from you may jeopardise the children’s enrolment at the school”.  Mr V’s email was in response to an email from the Father dated 6 June 2019 which the Father states “I will bring you to account, mate, just like Mr Pell”.  The children’s enrolment at the school concluded shortly thereafter.

1. In his affidavit evidence, the Independent Children’s Lawyer also canvassed some of the subpoena record materials viewed by the parties. He noted that the subpoenaed records from K School, which Z attended, include an email from the principal, Mr W, to the father at 4.00pm on 3 September 2019. It was as follows:-

   Dear Mr Philkin

   Given that you refuse to remove the offensive and derogatory comments that you have posted on Facebook about me and this School, I am writing to inform you that I will no longer communicate with you in any form. You have forfeited your right to engage in a civil manner with me and my staff and until you remove those comments and commit to appropriate communication we will have no further communication with you.

2. The subpoenaed records from K School contain a reference to the father publishing, on a public forum, details of Z’s test results and attendance records. 

3. The Independent Children’s Lawyer deposed to having spoken to Z, following her enrolment at K School in 2019. Z, at that time, was hopeful of attending G School as she had friends there.  She spoke to the Independent Children’s Lawyer about the distress that her sisters had suffered at having to leave T School in the middle of the year.  Z told the Independent Children’s Lawyer that she knew “Dad took the school to court.”[9]

   [9] Affidavit of Robert Charles Halliday affirmed 7 April 2020, [14].

4. Z shaved her head without her mother’s knowledge or consent and her mother was distressed by that action. As deposed to in paragraph 15 of his affidavit affirmed 7 April 2020, the Independent Children’s Lawyer spoke to Z, (on 6 October 2019) about shaving her hair.  The Independent Children’s Lawyer deposed to Z being an articulate child, approximately 180 centimetres in height, athletic, and until recently playing sport in the same team as her mother.

5. On Sunday 6 October 2019, the Independent Children’s Lawyer was copied into an email from the father to Suburb B Police expressing concerns that Z’s head had been shaven by offenders that the father wanted charged.  The Independent Children’s Lawyer made several inquiries of Suburb B Police on 6 October 2019. He was eventually able to speak to Senior Constable AA who had attended a welfare check with Z that day.  The Independent Children’s Lawyer was advised that police had no concerns in relation to Z in her mother’s care, and that Z was not stressed.  He was further advised that Z had decided that she would shave her own hair.  The Independent Children’s Lawyer advised the mother’s lawyer and the father of the results of his inquiries.

6. The Independent Children’s Lawyer met with the children again on 23 February 2020.  They seemed to him to be quite happy and settled.  All three children appeared relaxed in the company of their older half-brother, Mr C, who accompanied them to the appointment with the mother.  Z’s hair had grown considerably.  Z told him that she had signed the forms for H School and was going to attend the RESET program.  She seemed to be looking forward to resuming her studies.  In the Independent Children’s Lawyer meeting with Z she expressed resentment toward her father in relation to his interference in her life, and because of the constant welfare checks that the family were being subjected to because of her father.  Z also spoke about her father regularly contacting the children and then demanding that the communication be deleted because he would get into trouble.

7. On 10 March 2020 the Independent Children’s Lawyer received an email from the father directed to Z’s school, H School, in relation to Z being absent on 10 March 2020. The father demanded that H School commence proceedings or the father would commence proceedings by “3pm today”.[10]  The Independent Children’s Lawyer received a further email from the father at 3.05pm on 10 March 2020 that the father had also sent to H School.  In that email the father advised that “part of my claim will be for the school to pay J School for the recovery of education of Z.”

   [10] Affidavit of Robert Charles Halliday affirmed 7 April 2020, [27].

8. The Independent Children’s Lawyer deposed to being concerned at the threats of a legal action by the father against H School and the likely impact on Z’s education.

9. On 18 March 2020, the lawyers for the mother sent a joint letter to the father and the Independent Children’s Lawyer stating inter alia that “the children are experiencing symptoms of a cold and as such our client has elected to keep them home from school.”[11]

   [11] Affidavit of Robert Charles Halliday affirmed 7 April 2020, [29].

10. The provision of the above information to the father resulted in the father causing an ambulance to attend upon the children on the basis that he considered the children to be at high risk of being infected by COVID-19.  The father, in the evening of that same day, forwarded emails directly to the Independent Children’s Lawyer attaching three audio recordings of his telephone calls with emergency personnel as follows:-

    a)the first recording being of the father speaking to an Ambulance Victoria telephone operator in relation to his request for an ambulance to attend at the home to assess the children;

    b)the second recording was a telephone call between the father and a Victoria Police emergency telephone operator.  The father stated in that recording that he is reporting “suspected cases of coronavirus” in relation to the three children. He stated that the advice from the mother’s lawyer was that the children were showing symptoms of coronavirus.  The father then attempted to urge the police to perform a “medical check” on the children in the circumstance where Ambulance Victoria triage assessed that it was not necessary for an ambulance to attend the property;[12] and

    c)the third recording was of a telephone call between the father and a member of Suburb B Police Station. The father stated in that recording that the mother is “telling the lawyers that the children are sick with coronavirus symptoms.”[13]

    [12] Affidavit of Robert Charles Halliday affirmed 7 April 2020, [31].

    [13] Affidavit of Robert Charles Halliday affirmed 7 April 2020, [31].

11. On 19 March 2020, the Independent Children’s Lawyer wrote to the lawyers for the mother seeking that the mother arrange for the children to attend upon their general practitioner as a matter of urgency.  The mother obtained an appointment with Dr BB on 19 March 2020 in respect of the child X, and on 20 March 2020 the mother’s lawyer sent a letter to the Independent Children’s Lawyer attaching a medical certificate by Dr BB in relation to a diagnosis of a respiratory viral infection and stating X was unable to attend school from 16 to 20 March 2020.

MM Service

1. The father makes complaint about MM Service children’s contact service and the provision of that service to him, the mother and the children. In paragraph 2 of the father’s affidavit filed 5 April 2020 the father states that he has “has demonstrated to the court as to why Judge Sullivan should not have made supervision orders and the Judge got it wrong and eligible for an appeal.”

2. Paragraph eight of the orders made by His Honour Judge O’Sullivan on 26 November 2019 required each of the parties to apply to MM Service children’s contact service Suburb B for the purposes of the father spending supervised time with the children. No orders for supervised time were then made.  Each of the parties have complied with order eight of the orders as made.

3. The father then advised the Board of MM Service by email dated 16 December 2019 that “[t]his is a letter of demand to commence visits forthwith and failure to do so will result in legal action to terminate your registration with ACNC.”[14]

   [14] Annexure ‘RCH-5’ to the Affidavit of Robert Charles Halliday affirmed 7 April 2020, [31].

4. The father’s threatened legal action is to seek to have MM Service deregistered as a charity. He maintains that “MM Service must be deregistered” and that he “will do that as their conduct is illegal and misleading and in breach of consumer law.”[15]

   [15] Affidavit of Mr Philkin filed 7 April 2020, [14].

5. The father by email dated 16 December 2019 further advised MM Service, relevantly, that:-

   ...[Y]our service is misleading and I will be asking for orders in [the Victorian Civil and Administrative Tribunal (‘VCAT’)] to close your service to eliminate any further orders from referring parents to your service as this is in the public interest.[16]

   [16] Annexure ‘RCH-5’ to the Affidavit of Robert Charles Halliday affirmed 7 April 2020, [31].

6. In the time between the making of orders by His Honour Judge O’Sullivan on 26 November 2019 and the making of orders by Her Honour Judge Stewart on 7 February 2020 (as referred to in the following paragraph) a child inclusive child dispute conference (‘CIC’) involving the children and parties occurred. Following the CIC, family consultant Ms CC provided a memorandum (‘the CIC memo’) to the Court recommending that:-

   a)the children spend time with their father through a children’s contact centre;

   b)the parties attend for a psychiatric assessment;

   c)the parties be restrained by injunction from denigrating the other parent or discussing proceedings with the children; and

   d)the children attend appropriate counselling; and

   e)a family report be prepared.

7. The father’s evidence is that no weight should be given to the CIC memo. He sought that the family consultant disqualify herself at the commencement of the interview. 

8. The father’s objection to MM Service appears to be that there is a waiting list for any form of supervised time to commence.  There is however no order that there be supervised time between the father and the children. The orders that have been made since the 26 November 2019 orders made by His Honour Judge O’Sullivan  are those made by Her Honour Judge Stewart on 7 February 2020.  Order number two of those orders is as follows:-

   2The Father be permitted to forward gifts and cards for the children’s, Z born in 2007, Y born in 2009 and X born in 2012, respective birthdays by forwarding the same through the office of the Independent Children’s Lawyer and PROVIDED ALWAYS THAT:-

   (a)such gifts and cards are forwarded through the Independent Children’s Lawyer;

   (b)the Independent Children’s Lawyer is permitted to inspect the same with respect to appropriateness; and

   (c)in the event that there is any aspect of the gifts and/or and cards that are inappropriate, the Independent Children’s Lawyer is at liberty to not forward such gifts and/ or cards he considers inappropriate, and/ or forward only the aspect of the gifts and/or cards that he considers appropriate.

9. Although there were previous orders in respect of a psychiatric assessment of each party being obtained,[17] the position is that there is, as yet, no legal aid funding in respect of the psychiatric assessment of the mother, and the father’s submissions are that he cannot afford to undergo a psychiatric assessment with those psychiatrists as nominated in the Court order. The father earns an income. The mother claims his income receipt to be approximately $145,000 gross per annum, and the father claims it to be $70,000 per annum. The father is representing himself.  He is not in receipt of Centrelink benefits and unlikely to receive any legal aid funding for a psychiatrist assessment and report.  The order is clear, however, and it requires the father to undergo a psychiatric assessment and obtain a report to be provided to the Court and the other parties.  The father appears reluctant to comply with this order.

   [17] Pursuant to order 3 of the orders made 7 February 2020 by Her Honour Judge Stewart in the Federal Circuit Court.

10. Without the benefit of a psychiatric assessment of both parties, it is difficult to see how this matter can move forward.  The father’s admitted and/or documented behaviours over time are very concerning.  They are highly problematic and aggressive.

11. The Independent Children’s Lawyer advised the mother’s lawyer and the father by letter dated 13 February 2020 that he had made appointments for the parents to see Dr DD, the mother on 19 May 2020, and the father on 20 May 2020. Those appointments remain and that psychiatric evidence is necessary to assist the Court in the determination of the advancement of the children’s best interests.

12. The father has sent to the Independent Children’s Lawyer in excess of 250 emails.  Many of them contain numerous attachments.  Many of the father’s emails contain forwarded emails from third parties running to several pages of correspondence, often not relevant to these proceedings, as deposed to by the Independent Children’s Lawyer and conceded by the father save as to the question of relevance.

13. On 29 January 2020 at 11.00pm the Independent Children’s Lawyer sent an email to the father advising that the father had sent to the Independent Children’s Lawyer an email at 4.32pm that day which contained 34 attachments, some of which were duplicates; some attachments containing numerous emails and their own threads; and one attachment being appointment times for parent/teacher interviews for the children in 2017.  The thread of emails included the materials involving the father’s action against one of the children’s previous schools in VCAT in 2017.  The Independent Children’s Lawyer told the father that he would not respond to emails that the father has sent to third parties, and then forwarded on to the Independent Children’s Lawyer without any message or correspondence attached. He reminded the father that as the Independent Children’s Lawyer he is funded using the limited resources available from the public purse.  The father’s response sent on 9 February 2020 was, “I recommend that you obtain more funding.”[18]

    [18] Affidavit of Robert Charles Halliday affirmed 7 April 2020, [41].

14. There is no evidence before the Court to support the father’s allegations of actual or perceived bias as against the Independent Children’s Lawyer. Indeed there is considerable evidence of an impartial Independent Children’s Lawyer acting as he should and with great diligence. His focus on the promotion of the children’s best interests is clear. The Independent Children’s Lawyer is not required to take instructions from the father nor trawl through all material, whether relevant or not, as submitted to him by the father. There is no merit in the father’s application.

15. Given all of the above evidence, and without a proper application before it, the Court shall not make an order for the resumption of time spent between the children and the father. The children’s views will need to be before the Court as will the psychiatric reports of Dr EE. If supervised time is to be considered then the issues presented by the COVID-19 pandemic will need to be addressed.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 1 May 2020.

Associate:

Date:  1 May 2020