Suris & Suris

[2021] FedCFamC1F 1

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Suris & Suris [2021] FedCFamC1F 1   

File number(s):

BRC 1193 of 2019

Judgment of:

CAREW J

Date of judgment:

2 September 2021

Catchwords:

FAMILY LAW – CHILDREN – Unacceptable risk of harm – Where the mother and the father both allege the other parent is an unacceptable risk of harm to the children – Where children are currently in the care of the mother and the evidence reflects that the children are doing well – Where it is found that the mother does not present an unacceptable risk of future harm – Where the father has demonstrated a complete lack of insight into the impact of the children being exposed to the parental conflict and his fixated ideas – Where the impact of the father’s conduct on the children leaves no doubt that he presents an unacceptable risk of emotional and psychological harm to the children that cannot be ameliorated by supervision.

FAMILY LAW – CHILDREN – What parenting order is proper – Where the children would like to spend time with their father but recent attempts caused distress – Where the children are well settled in the care of the mother who has developed a child focus perspective – Where the mother is to have sole parental responsibility, the children are to live with the mother and the father is restrained from having any contact or communication with the children unless initiated by the children.

FAMILY LAW – PROPERTY – Consent Order – Where the father sought to set aside a consent order by reason of duress, an assertion that his compensation money should not have been included in the property pool, the mother’s failure to disclose relevant information, fraud and incompetent legal representation – Where the father failed to establish a ground to set aside the consent order.   

Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Banks & Banks (2015) FLC 93-637

Bant & Clayton (2019) FLC 93-924

Baghti & Baghtiand Ors [2015] FamCAFC 71

Burge & Burge [2015] FamCA 178

Briginshaw v Briginshaw (1938) 60 CLR 336

Campbell v Superannuation Complaints Tribunal (2016) FLC 93-724

Clifton & Stuart (1991) FLC 92-194

Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24

Holland and Holland (1982) FLC 91-243

Johnson & Page (2007) FLC 93-344

In the marriage of P and P (1985) FLC 91-605

In the marriage of T and T (1984) FLC 91-588

Lane & Lane (2016) FLC 93-699

M v M (1988) 166 CLR 69

Malpass v Mayson (2000) FLC 93-061

N and S and the Separate Representative (1996) FLC 92-655

Suiker and Suiker (1993) FLC 92-463

Thorne v Kennedy (2017) FLC 93-807

Williams v Williams (1985) 61 ALR 215

Division:

Division 1 First Instance

Number of paragraphs:

152

Date of hearing:

28-30 July 2021 and 2 August 2021

Place:

Brisbane

Counsel for the Applicant:

Mr Baston

Solicitor for the Applicant:

Ogge Law

Respondent:

Self-represented

Counsel for the Independent Children's Lawyer:

Ms Kirkman-Scroope

Solicitor for the Independent Children's Lawyer:

Smithson Lawyers

ORDER

BRC 1193 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SURIS
Applicant

AND:

MR SURIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:	CAREW J
DATE OF ORDER:	2 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.Ms Suris (“the mother”) shall have sole parental responsibility for major long-term issues as that term is defined in s 4(1) of the Family Law Act 1975 (Cth), for the children, X born … 2004, Y born 1… 2006 and Z born … 2008 (“the children”).

2.The children shall live with the mother.

3.Mr Suris (“the father”) is restrained from having any contact or communication with the children unless initiated by the children.

4.The father is restrained from approaching within 200 metres of the children unless by prior arrangement initiated by the children.

5.The father is to forthwith take all steps necessary to remove from any website or social media account or film, any account of any proceedings under the Family Law Act 1975 (Cth) that identifies himself, the mother, the children and/or a witness in the proceedings.

6.It is respectfully requested that a Registrar of this Honourable Court refer the following documents to the appropriate authorities for consideration of whether the mother should be investigated for possible offences under ss 66A, 67, 68 or 76 of the Social Security (Administration) Act 1991 (Cth) and/or ss 134.1, 134.2, 135.1, or 135.2 of the Criminal Code Act 1995 (Cth), and/or any other offences that the appropriate authority considers the mother has committed during the period 2010 to 2017:

(a)Paragraph 6 of this order;

(b)Paragraphs 1 – 9 of the mother’s affidavit filed 30 June 2021;

(c)Annexure F-02 to the father’s affidavit filed 9 July 2021 being a copy of the mother’s 2015/16 tax return;

(d)Annexure F-04 to the father’s affidavit filed 9 July 2021 being a copy of a letter to the father from the Child Support Agency dated 23 December 2016 together with enclosures;

(e)Paragraphs 4 - 6 and paragraphs 25 - 26 of the father’s affidavit filed 9 July 2021; and

(f)File note of Dr K dated 19 July 2019 on page 3 of Exhibit 1 (being a Report of Dr K dated 18 May 2020) in the proceedings.

7.It is respectfully requested that a Registrar of this Honourable Court refer the following documents (including recordings) to the appropriate authorities for consideration of whether the father should be investigated for any offence under s 121 of the Family Law Act 1975 (Cth), r 1.19 of the Family Law Rules 2004 (Cth) (as at 1 September 2021, r 15.20 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) and contravention of an order made by this Honourable Court on 12 February 2021 and an order made by the Federal Circuit Court of Australia on 18 March 2020:

(a)Paragraph 7 of this order;

(b)Order dated 12 February 2021;

(c)Order dated 18 March 2020;

(d)social media posts made by the father dated 7 April 2020, 8 April 2020 (forming part of Exhibit 5 in the proceedings) and a social media post made on or after 1 July 2021 (Exhibit 4 in the proceedings);

(e)Webpage entitled … dated 8 April 2020 (forming part of Exhibit 5 in the proceedings);

(f)Pages 175-176 of the Transcript of proceedings, Day 2, Thursday 29 July 2021 where the father makes admissions about being involved in a Podcast first published in September 2020;

(g)Pages 201-204 and 208-210 of the Transcript of proceedings, Day 2, Thursday 29 July 2021 and pages 350-357 of the Transcript of proceedings, Day 3, Friday 30 July 2021 where the father makes admissions about the publication of a film shown at a public event at a cinema on … February 2021; and

(h)Exhibit 3 in the proceedings (being a recording dated 8 January 2021 between Ms M, the father and the children).

8.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

9.Any outstanding applications be 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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

CAREW J:

1. Ms Suris (“the mother”) and Mr Suris (“the father”) have three children together, aged 17, 15 and 13 respectively. The parents are unable to agree about where the two younger children should live, and what time, if any, they spend with the other parent. The father also seeks to re-open property proceedings which were finalised by consent on 26 July 2019.

2. There has been a history of high conflict between the parents and significant periods when the children did not have contact with one or other of the parents. Each parent makes allegations that the other poses an unacceptable risk of future harm to the children. The three children currently live with the mother and have not spent any time with the father since February 2020 (other than on occasion when the father has seen the children at a bus stop or at the family report interviews on 8 January 2021).  

3. For the reasons which follow, I propose to order that the children continue to live with the mother and to restrain the father from spending time with or communicating with the children other than as initiated by the children. The father’s application to set aside the final property order will be dismissed.

   WHAT PARENTING ORDER IS EACH PARTY SEEKING?

4. The mother is seeking sole parental responsibility for the children, that they live with her and spend no time with and have no communication with the father.

5. The father is seeking sole parental responsibility for the children, Y and Z, and that they live with him. The father agrees that the mother should have sole parental responsibility for X and that she live with the mother. The father proposes that the children spend time with and communicate with the parent with whom they are not living at times they request.

6. The Independent Children’s Lawyer (“ICL”) recommends that the mother have sole parental responsibility for the children and that they live with her and spend time with the father as agreed between the parents.

   ISSUES IN THE PARENTING PROCEEDINGS

7. In the parenting proceedings, the parties identified the following significant issues as requiring determination:

   (1)Do the parties have the capacity to make joint decisions about major long-term parenting issues?

   (2)Does the mother present an unacceptable risk of harm to the children by reason of alleged family violence and/or alcohol abuse and/or drug abuse and/or psychological abuse and/or physical abuse?

   (3)Does the father present an unacceptable risk of harm to the children by reason of alleged emotional or psychological abuse?

   (4)Is it possible for the children to have a relationship with both parents given the competing allegations that the parents are denigrating the other in the presence of the children and involving the children in the dispute?

   (5)What weight should be given to any views expressed by the children?

8. Although the father sought a declaration in his Amended Response filed 9 July 2021 that he had not alienated the children, the matter was not raised as a separate issue for determination and no submissions were directed to the making of such a declaration. The impact on the children of the father’s alleged conduct is however a matter considered in these Reasons.

9. It will be helpful to set out some background to this matter and identify the applicable legal principles before considering the issues.

   BACKGROUND

10. The mother and father commenced a relationship in 2001 and married in 2003. They separated in May 2017. The parents have three children together. X was born in 2004, Y was born in 2006 and Z was born in 2008 (“the children”).

11. The mother is 44 years of age and works in two service industries.

12. The father is 51 years of age and is unemployed. He was a member of the Australian Defence Force (“ADF”) from 2009 until 2017. The father was diagnosed with post-traumatic stress disorder (“PTSD”) in or about July 2017 and medically discharged from the ADF in September 2017. He received three lump sum compensation payments between 31 July 2017 and 12 February 2019 totalling $653,140 and receives a veteran’s disability pension of $900 per week.

13. The father has two adult children from a previous relationship from whom he has been estranged for about 20 years.

14. Upon joining the ADF in 2009 there was almost no contact between the father and his family for about three months and then minimal contact for the following 12 months. The father was deployed overseas on three occasions during the marriage. The first deployment was to Country C from 28 August to about 12 November 2010. The second was to Country D for three months in 2012 and the third was to Country J from 25 February 2016 to 21 March 2016. Throughout his service, the father was stationed in Brisbane which was about two hours’ drive from the former matrimonial home. The father also spent extended periods in other Australian towns throughout his service. The mother contends that the father was absent from home for six months per year throughout his service with the ADF. Whether or not his absences were for this long, it is common ground that he was frequently absent because of his work.

15. After the parents’ separation in May 2017, the children initially lived with the mother and shortly thereafter in a week about arrangement between the parents’ households until 2018. The father retained the child, Y, after the Easter school holidays in 2018 and unilaterally changed her school from L School to N School. The child, X, commenced to live full time with the father after the September 2018 school holidays. In late October 2018 the father also retained the child, Z.

16. The mother commenced proceedings in the Federal Circuit Court of Australia on 2 February 2019 and despite an interim order made by consent on 28 May 2019 that Y and Z spend each alternate weekend with the mother, they did not spend regular time with her.

17. X voluntarily returned to live with the mother in October 2019. On 28 October 2019 a further interim order was made by consent giving effect to that arrangement and for Z to spend time with the mother ‘two weekends out of three’ and for Y to spend time with the mother as recommended by Ms G, a court appointed psychologist. Time did not occur in accordance with the order and the father failed to engage with Ms G as ordered.

18. The mother found out by chance in February 2020 that Z was to undergo an operation on her arm.  On 27 February 2020 an interim order was made that Y and Z live with the mother and that time between the father and the children be suspended. The father’s appeal against the interim order was dismissed, as was his application for special leave to appeal to the High Court of Australia. The father was ordered to pay the mother’s costs of the appeal but has not done so.

19. On 18 March 2020 the father was restrained from having any direct or indirect contact with Y and Z and from attending within 500 metres of the children’s sports grounds. Further, the father was ordered to remove social media posts and comments dated 3 March and 5 March 2020. The father was provided by the Court with a copy of s 121 of the Family Law Act 1975 (Cth) (“the Act”) (which creates the publication of certain material an offence), and a recommendation made that he seek legal advice.

20. In this case, there are serious allegations of family violence made by each party against the other. Each party largely denies the allegations made against them.

21. On 26 November 2018 the father filed an application for a protection order against the mother. The matter was resolved upon the provision of an undertaking by the mother on 28 November 2018 without admission.

22. In September 2019 the father filed a further application for a protection order against the mother and on 12 September 2019 a temporary protection order was made. The mother opposes the granting of a final protection order and the trial of that matter is yet to be heard in the local Magistrates Court. It has twice been adjourned.

23. X, has a history of depression, self-harm and misbehaviour at school although she appears to be performing well now, both behaviourally and academically.

24. On 19 February 2021 an order was made restraining the father from publishing any identifying aspects or persons in these proceedings in a film that the father has purportedly commissioned about his family and family law proceedings generally. The father contends there was a public screening of the film at a ticketed event at a cinema on … February 2021.

25. The father has also been involved in the creation of a public website addressing family law matters, to which he contributes and to which he has posted communications between himself and the children.

    APPLICABLE LEGAL PRINCIPLES

26. Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[1]

    [1] Family Law Act 1975 (Cth), s 65D.

27. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

    (a)The person or persons with whom a child is to live;

    (b)The time a child is to spend with another person or other persons;

    (c)The allocation of parental responsibility; and

    (d)The communication a child is to have with another person or persons.

28. The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

29. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

30. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).

31. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

32. ‘Abuse’ is defined in s 4 of the Act and means:

    (a)An assault, including a sexual assault of the child; or

    (b)A person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c)Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d)Serious neglect of the child.

1. ‘Family violence’ is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

2. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

3. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[4] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[5] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[6] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[7]

   [2] Evidence Act 1995 (Cth), s 140.

   [3] M v M (1988) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).

   [4] Ibid.

   [5] Ibid at 77; N and S and the Separate Representative (1996) FLC 92-655.

   [6] Johnson & Page (2007) FLC 93-344 at 81,890–81,891, [68].

   [7] Ibid at 81,891, [71].

4. The Full Court of the Family Court of Australia (“the Full Court”) recently reviewed the role of the Court in assessing risk in Bant & Clayton[8] and from [38]:

   [8] (2019) FLC 93-924.

   In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).

   The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment.  As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:

   …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …

   As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.

5. The Full Court in Bant & Clayton[9] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:

   The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred.  It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.

   [9] (n 8).

6. The Court is not required to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the court “cannot be diverted by the supposed need to arrive at a definitive determination” ^[11] on each and every factual dispute.[12]

   [10] Baghti & Baghtiand Ors [2015] FamCAFC 71.

   [11] M v M (n 3) at 76.

   [12] Ibid.

7. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).

8. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

9. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

10. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

11. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[13]

    [13] Banks & Banks (2015) FLC 93-637.

12. I turn now to consider the particular issues identified as requiring determination.

    DO THE PARTIES HAVE THE CAPACITY TO MAKE JOINT DECISIONS ABOUT MAJOR LONG TERM PARENTING ISSUES?

13. As noted earlier in these Reasons, there is a rebuttable presumption in parenting proceedings that it is in the best interests of children for their parents to have equal shared parenting responsibility for making decisions about major long term parenting issues relating to matters such as schooling, medical, religion etc. If such an order is made it requires the parents to make such decisions jointly. Neither parent has sought an order for equal shared parental responsibility. The ICL recommends against such an order.

14. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in family violence. In this case, leaving aside the various allegations made by each parent against the other, that each has been the victim of family violence perpetrated by the other, it is common ground that the children have been exposed to yelling and arguing between the parents causing the children to become fearful. Such conduct on the part of the parents falls within the definition of family violence. Accordingly, the presumption does not apply.

15. In my view it is not in children’s best interests for the parents to have equal shared parental responsibility in circumstances where they do not communicate at all and would have no ability to make joint decisions. There has been a history of dispute about schooling and medical matters which has required Court intervention. An order for equal shared parental responsibility would more likely than not result in further Court proceedings and delay the making of decisions about major long term issues affecting the children.  

    DOES THE MOTHER PRESENT AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY REASON OF ALLEGED FAMILY VIOLENCE AND/OR ALCOHOL ABUSE AND/OR DRUG ABUSE AND/OR PSYCHOLOGICAL ABUSE AND/OR PHYSICAL ABUSE?

16. The father bears the onus of establishing that the mother presents a future risk of harm to the children which is unacceptable.

    Alcohol and/or drug abuse

17. The father refers to one incident a number of years ago where he contends the mother drove her car while intoxicated when the child, X, was with her. The mother concedes driving the car with X after having consumed “a few drinks” but denies she was intoxicated.

18. The father also alleges that the mother drank to excess when he was in the ADF. The mother conceded to the first family report writer, Mr E on 17 July 2019 that she drank more at that time e.g. perhaps three glasses of wine in the evening. The mother told Mr E that at the time of her interview she would have a drink on weekends and perhaps a glass of wine after work during the week.

19. During her interview with Mr E, Y and Mr E had the following exchange:

    When I asked [Y] if anything needed to change with her mother, she responded, "if [the mother] stopped drinking". [Y] then said that when her mother drank around people, she seemed more nice and loving but when there was no one else around, she would yell. [Y] said that she used to see her mother drink a glass of wine in the morning and in the afternoon, "three-four glasses". As to how often she witnessed this, [Y] responded, "nearly every day".

20. However, I note that according to Y, she had only seen her mother once since the interim order had been in place i.e. May 2019, and prior to the order she had spent very little time with the mother for about a year.

21. Mr E reports the following information from his interview with X:

    When asked whether either parent drank heavily, [X] said that her mum used to when her dad was away. [X] thought that this was because her mother would be upset at the prospect of never seeing him again. However, she added that her mother would never drink heavily in front of the children. [X] never saw her mother intoxicated. "She'd have like one drink a day, usually with dinner". However, X noticed that there was always alcohol in the home.

22. During her interview with Mr F, a family consultant, on 27 February 2020, the mother denied having had a problem with alcohol during the marriage but concedes she did drink and told Mr F that in the last six months she would, on average, drink two glasses of wine nightly.

23. The mother concedes using numerous illicit substances in the past but denies doing so in the last 20 years or thereabouts. There is no evidence to the contrary.

24. In the lead up to this trial, the mother submitted to three carbohydrate deficient transferrin tests on 11 September 2020, 15 December 2020 and 18 March 2021. All three tests note that the results do not support recent or ongoing excessive alcohol use. The mother also submitted to a drug screen test on 18 March 2021 and no drugs were detected. 

    Family violence and/or psychological abuse

25. The father alleges that the mother frequently verbally abused the children during the marriage including calling them “fucking cunts”, “fucking bitches”, “pieces of shit” and threatening them e.g. “I’ll fucking kill them all” and “I’ll fucking rip their arms off”. The father contends that the mother sometimes said to him that she was afraid of what she would do to the children and blamed him for always being at work. The father relies on evidence from a neighbour who lived next door to the parties for 10 years. Mr O says that during that 10 year period, “on several occasions, I have heard [the mother] … yelling at the top of her voice, swear words of every colour imaginable, usually lasting from 10 to 20 seconds … I could hear and see [the father] walking toward the house from his backyard calling out to [the mother] to “calm down” and he’d be up in a minute” (emphasis added). Mr O speculates that the children may have been in the house at the time, but he did not see them.

26. The father further alleges that the children were present on occasions when the mother yelled and screamed at him, accusing him of cheating on her.

27. The father contends that as he “couldn’t figure out how to fix the problems at home [he] decided to enlist in the ADF”.

28. The mother concedes swearing and yelling at the children “occasionally” prior to her separation from the father, but denies the extent or frequency of the verbal abuse alleged by the father and denies swearing and yelling at the children since separation. The mother further concedes that there were occasions when she screamed and yelled at the father accusing him of cheating on her, in front of the children and that, at times of frustration in the context of managing as a single parent with financial strains, she said she was going to kill the children. The mother says she did not mean what she said.

29. All three children have complained, to the various family consultants who have interviewed them, about their parents yelling and arguing during the marriage.

    Physical abuse

30. The father further alleges that the mother caused an injury to Z’s arm sometime in August 2010. In his trial affidavit filed on 9 July 2021, the father says the following:

    16. In 28 August 2010 I was deployed for the first time to Country C. Once there, I spoke to Ms Suris on the phone twice a week. … I regularly heard her screaming to our children over the phone and she was saying things to me including “The kids won't shut the fuck up! I'm going to kill these kids!" On one of those occasions, I could hear Z crying really loudly in the background like she was in pain. I asked Ms Suris "What's the matter with Z?" Ms Suris said to me "She's been crying for three or four days and she won't shut the fuck up. If she doesn't shut up I am going to kill her!" I said to Ms Suris "Please don't talk like that about the kids. I'm over here watching children die and I'm saving their lives. I don't what you say that about our children. I don't want to hear it" Ms Suris replied screaming down the phone "If you don't come home, you're gonna come back to fucking dead children!" I said to her feeling desperate "Look, I will come home as soon as I can. I don't know when I can get home but I'll get home as soon as possible when I speak to my bosses.”

    (As per the original)

31. It is common ground that Z has an old fracture to her arm that was not detected until 2017. Each of the parents contend that they were the first to notice an oddity about Z’s arm many years ago. It is common ground that they jointly took her to hospital on more than one occasion in 2010 and 2012 to investigate. They were initially told the problem was genetic but in January 2017, Dr P provided a report which included the following:

    …

    I note that this little girl was noted by her mother to be a bit awkward in catching the ball. Her left arm and hand would not seem to be as flexible as the right arm and hand when catching a basketball. This was about age five. Her mother does not know of any definite injury to the left forearm.

    Her mother then subsequently noted that the forearm did not rotate.

    [Z] was apparently seen at the Q Hospital and then referred to the R Hospital where she was told that the problem was a radio-ulnar synostosis which is correct but it is only part of the problem.

    [Z] had X-rays at Q Hospital a couple of years ago and then at the R Hospital and then was seen at the R Hospital but her mother is not sure whether or not the R Hospital doctors ever saw the actual X-rays or whether they only saw the report.

    In any event the left elbow is deformed and there is certainly a bow in the left forearm.

    Clearly the radial head is dislocated anteriorly.

    …

    X-rays show that [Z] has definitely had an old missed injury.

    [Z] has had a missed Monteggia fracture with an anteriorly bowed ulna, and a dislocation of the radial head anterior to the distal humerus.

    As well as this there has clearly been an injury to the proximal radius and ulna additionally, perhaps with periosteal stripping at the time of the dislocation.

    There is a radio-ulnar synostosis, which looks post-traumatic rather than developmental.

    …

    I have explained to the parents however that the ulna has been injured previously with plastic deformity, and anterior bowing. This causes anterior traumatic dislocation of the radial head and it is an injury which unfortunately is frequently missed in young children, often of five or six years of age, and this little girl is now eight years of age. It may have even occurred a little earlier in her case.

    …

    It is not a terribly common injury and unfortunately it is often missed initially.

    …

    (Emphasis added)

32. The mother denies causing the injury to Z and contends that she does not know how the child suffered a fracture.

33. I note that Z told the family consultant, Ms H, on 17 May 2019 that “her dad makes up lies about her mum, particularly about her broken arm, suggesting to her that her mother caused the injury”.

    Conclusion on whether the mother presents an unacceptable risk of harm

34. While it is likely that the mother consumed alcohol to excess on occasions in the past while having the children in her care, the evidence does not support a finding that the mother presents an unacceptable risk of future harm to the children by reason of alcohol consumption or drug use. The father concedes this to be the case.  

35. I have no doubt that being sworn at by their mother or hearing her say she was going to kill them would likely cause some emotional, if not, psychological harm. However, I accept the mother’s evidence that the extent of her verbal abuse has been exaggerated by the father and taken out of context (although that should not in any way be taken as excusing the mother’s conduct, as admitted by her). In coming to this conclusion, I have taken into account the extensive periods of absence from the home by the father and therefore his limited opportunity to make his observations (although I note there was telephone communication on occasions in his absence). I also noted that the father remained in the ADF from 2009 until 2017 and made no complaint to any authority about the mother’s conduct as he now describes it. I have also taken into account the evidence of Mr O who says he heard the mother swearing and yelling on only “several occasions” in a ten year period. He otherwise describes the mother as “pleasant and friendly”.

36. It seems likely that the mother has involved the children in the parental dispute from time to time, however, the mother’s response, during her oral evidence, to questions relating to X surviving a suicide attempt, causes me to find that the mother has developed insight into the impact on the children of being exposed to conflict.

1. The mother’s changed circumstances since separating from the father, the older ages of the children and the mother’s development of insight cause me to find that any risk of exposure to family violence and/or emotional or psychological harm from the mother is minimal.

2. In coming to this conclusion I have also had regard to Ms M’s assessment of the mother. In her report she says the following:

   9.13 [The mother] presented as a polite and respectful individual who was extremely child focussed during our interview. …

   9.14 Of particular note in my view, was my observation of [the mother’s] ability to demonstrate a strong ability to approach all issues from X, Y and Z's points of view. This child focussed perspective is known as mind-mindedness which strongly predicts security of attachment. This is the ability of the caregiver to hold the mind of the child in their own at all times and in their interactions and behaviours around the child. I observed [the mother] to clearly articulate the children's needs in detail and proudly spoke about them in a warm, positive, and nurturing fashion.

   (Emphasis in original)

3. The evidence does not support a finding that the mother caused the injury to Z or that she presents an unacceptable risk of future physical harm to the children for the following reasons:

   (a)There is no direct evidence that the mother caused the injury to Z;

   (b)To support his allegation, the father relies upon his dubious recollection that during a phone call 11 years ago, the child was crying and he speculates that she was in pain;

   (c)While the mother concedes that she did say on at least one occasion many years ago that she was going to kill the children, the mother contends it was said in frustration in circumstances where she was trying to manage alone with three very young children and financial pressures, and says that she did not mean what she said. I accept her evidence about the context of her comment;

   (d)There is no evidence that the mother ever attempted to kill any of the children;

   (e)The father made no complaint to anyone at the time of the alleged threat and indeed enlisted in the ADF after he says such a threat had been made (see [57] above) and remained in the ADF until 2017, from which I infer, he did not take the mother’s threats seriously;

   (f)The mother took steps to have the deformity in Z’s arm investigated many years ago and the fracture was not picked up, in circumstances where Dr P says that the type of fracture is easily missed;

   (g)Dr P opines that such fractures are often missed in children about five or six years of age (and the child was then eight years of age) or may have occurred a “little” earlier in this child. (This does not corroborate the father’s evidence that the mother caused the injury in August 2010 when the child was not yet two years of age);

   (h)After receiving Dr P’s reports, the father agreed to the children spending week about time with the mother and later consented to an order that they spend alternate weekend time with her; and

   (i)The making of the allegation by the father in these proceedings appears to be somewhat opportunistic.

4. In concluding that the mother does not present an unacceptable risk of future harm, I have further taken into account that the children have been living with the mother since February 2020 and have not spent any time with the father since then. There is no evidence of any involvement by the Department of Children, Youth Justice and Multicultural Affairs in that time and the children’s school reports reflect that they are achieving well. All children attend L School. X is doing very well both academically and behaviourally. While Y is not achieving particularly well academically, this may in part be explained by her absenteeism of 20 days in the first semester in 2021. The mother contends that the child has had a number of sports injuries and there was also a period where Y had to isolate because she had been in a COVID-19 “hotspot” at a sports carnival so she could not go to school. I note that Y is described by Ms M as the most confused and conflicted of the children and this may also be having some impact. Z is achieving well both academically and behaviourally. Finally, I note that X and Y told the father during the family report interviews with Ms M in January 2021 that they were happy and safe living with the mother.

   DOES THE FATHER PRESENT AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY REASON OF ALLEGED EMOTIONAL OR PSYCHOLOGICAL ABUSE?

5. The father has demonstrated a complete lack of insight into the damaging impact on the children of being exposed to the parental conflict and his fixated ideas. His lack of insight may, of course, be a feature of his PTSD or personality vulnerabilities. Unfortunately, the father demonstrated, throughout the trial, a complete fixation on proving the mother to be in the wrong rather than focussing on what might be in the children’s best interests going forward. The father made numerous self-serving statements about how he was lauded internationally for saving children and how important it was for his documentary to be shown publically. The father contends that he has caused a film to be made involving not only his story but others’ stories of their experience in the family law system resulting in the alleged death of hundreds of children. This alleged documentary has been a source of anxiety for the children who have told the father that they do not want to feature in it and have told him how troubled they are by social media posts he has made that has come to the attention of their peers. The father dismisses the children’s legitimate concerns.

6. There are many examples of the father’s lack of insight and fixated ideas but I highlight three.

7. In February 2020 the father unilaterally arranged for Z to undergo surgery and failed to even inform the mother. The mother opposed the surgery given the risks associated with it which she had been informed may cause the child may end up with what was described as a “floppy arm”. To some extent the mother’s concerns about the risks are corroborated by Dr P’s report dated 20 January 2017 in which he described the surgery as having “major challenges”, although he supported surgery at that time. When the Court restrained the father from proceeding with the surgery the father primed Y and Z for a video recording in which Y says that Z is crying because she cannot get her arm fixed for another year and the father says that he had tried so hard. The obvious inference being conveyed to the children is that the mother was to blame for the child not having the operation and thereby being in pain.

8. On 25 May 2020 the father attended upon Dr S for a Court ordered psychiatric assessment. Dr S noted in his report dated 9 September 2020 that the father presented at the interview in the company of his film producer/camera man and proposed filming the session. Dr S ascertained that the particular issue that had led the father to feeling the need to make a documentary, related to his allegations that a transcript of a recording from the Court had been falsely changed and that he was organising a class action against the Family Court of Australia.

9. In Dr S’s opinion, the father presented on the day of interview as “angry and dysphoric” and his “thought content examination revealed paranoid themes, and themes of being repeatedly wronged”. Dr S opined that the father “appeared to have developed little understanding of the nature of any mental health issues in his life and about the factors that might have contributed to their causation”.

10. The father did not at any stage engage in the process of assessment for which Dr S had been retained and Dr S felt it better not to have a dispute with the father about his stance. In his report, Dr S opines as follows:

    …

    The basis of [the father’s] presentation is an extreme reaction to the post-separation processes that he has experienced, events and issues that have tested his coping mechanisms.

    These coping mechanisms are based on his personality and intellect, and occur in the context of his lifestyle, core beliefs and life experiences.

    …

    … a concern that [the father] perceives himself to be above the law, and is not able to comply with the Orders of The Court.

    …

    It is my opinion that [the father] is not coping very well with the post-separation experience.

    It is as if he perceives persons involved in the post-separation experience, including court officers of the Court, have conspired against him.

    His account at interview is one that can be accusatory.

    …

    I do not believe this non-compliance is as a result of an illness or sickness that can be treated.

    I believe the behaviour [the father] presented at his presentation means that there is an increased risk of an impairment for parenting functions for [the father].

    This is because he lacks insight into the behaviour he displayed at interview.

    This is because he is not able to realise that his quest to make a documentary, dispute the processes of The Court, campaign against the institutions in this society which administer the law, and to be very oppositional and argumentative, will not assist him to engage in the usual parenting functions that are needed to care for three children, at varying stages of development.

    …

    [The father’s] presentation at this stage of the post-separation process is not a good prognostic point.

    The longer he rails against the system and the various individuals involved in the post-separation experience the worse the prognosis.

    [The father’s] sense of mistrust, social isolation and frustration about his experience of post-separation processes to date, needs to be closely monitored, so that his functional capacity to work with the various individuals involved in those processes improves.

    …

    The fact that he now presents in the manner that is documented in this report, after some years of psychiatric treatment raises serious prognostic considerations.

11. I accept Dr S’s evidence.

12. On 8 January 2021 the father covertly recorded his interaction with Ms M, the family report writer, and his three children during the family report interviews. The content of the recording is really quite heartbreaking. Ms M had set up an opportunity for the father to spend time with the children and for the children to raise their issues with the father, in particular their concern about him making a movie about them. I have no doubt that all of the children love their father and would dearly love to have a relationship with him. Unfortunately, the father used the session to dismiss the children’s feelings and engaged in a completely self-focussed argument with the children and in particular X. I just do not know how the father could have listened to the nearly one hour recording (which was played during the trial) and not have felt a deep sense of shame and regret. It was clear from the father’s questions and submissions during the trial, that he saw the recording as assisting his case in further ‘proving’ him to be in the right and the mother and X to be in the wrong about contested factual matters.

13. All three children ended up in tears during the recorded interaction, with the two youngest ones opting to leave the room for a period. Eventually, Ms M asked the father to leave the room due to the distress of the children. After he left, X emotionally told Ms M that she simply wants the Court process to be finalised and said, “I’m done, he doesn’t deserve us, he doesn’t change … please tell the Court, you have seen it for yourself, he did it to you, please tell the Court we want it to stop”.

14. In the family report, Ms M describes her interaction with the father and says that his “body language was quite aggressive and he spoke in an accusatory and passive aggressive fashion which could best be described as ‘in your face’” and that when she attempted to speak, the father spoke over her and focussed his attention on challenging her about her expertise and experience. Ms M then describes the father speaking about “how children are dying in the Family Court system and then asked me who killed these children and that he is making a documentary about this”. When specifically asked by Ms M if he was recording their conversation, the father falsely denied that he was.

15. Ms M expresses concern in her report about the father’s mental health and agrees with Dr S that “it is concerning that [the father] continues to present in such an erratic fashion, after so much psychiatric intervention over time”. Further, Ms M opines that the father’s “focus on making his documentary appears to have consumed him and he was dismissive of the children’s plea on the day of the interviews to not proceed with it”. In Ms M’s view it would be “untenable” for the children to have to spend time with the father and that “he will not be restrained by any level of supervision”. I accept Ms M’s evidence.

16. The impact of the father’s conduct on the children (as demonstrated in particular by Exhibit 3) leaves me in no doubt that he presents an unacceptable risk of emotional and psychological harm to the children that cannot be ameliorated by supervision.

    IS IT POSSIBLE FOR THE CHILDREN TO HAVE A RELATIONSHIP WITH BOTH PARENTS GIVEN THE COMPETING ALLEGATIONS THAT THE PARENTS ARE DENIGRATING THE OTHER IN THE PRESENCE OF THE CHILDREN AND INVOLVING THE CHILDREN IN THE DISPUTE?

17. As already noted, both parents have involved the children in the parental dispute but the reason I find that the children cannot have a relationship with the father in the future relates only to his own conduct and lack of insight. The mother has developed considerable insight into the impact of her past conduct on the children but the father has not.

18. The children need a break from being the focus of their parents’ dispute. It may be that in time the children may seek out the father and I am in no doubt that, at least Y and Z would like to have a relationship with him. Unfortunately, the father has not yet developed insight into the impact of his behaviour on the children and has developed fixated ideas that are unhelpful to the children. Dr S and Ms M are pessimistic about the father changing his ways (which Dr S considers are largely related to personality), particularly having regard to the long period he has been receiving psychiatric treatment.  

    WHAT WEIGHT SHOULD BE GIVEN TO ANY VIEWS EXPRESSED BY THE CHILDREN

19. All three children were interviewed together at their request.

20. X told Ms M that she believes the father hates her. Ms M noted the obvious difference in the way the father treated X and the two younger children on the day of interview. He gave gifts and cards to the two younger children and immediately hugged them upon entering the room. X told Ms M that she felt she would have committed suicide if she had continued to live with the father because he would never validate her emotions or feelings. X said that the father told her his family hated her and that she was “the devil” and accused her of looking and acting like her mother and “he hates mum”. X feels she has been rejected once too often by her father.

21. Y is described by Ms M as the most confused and conflicted of the children. Y feels the father sought to alienate her from her mother. Ms M nevertheless assessed that Y still had a certain loyalty to her father and wants a relationship with him. Ms M observed Y run over to her father and give him a hug before she left the building where the interviews were conducted.

22. Z presented to Ms M as confused by the protracted Court proceedings and questioned why her father behaves in the way he does, but said she would like to spend alternate weekend time with him.

23. All three children expressed a strong and genuine desire for the father to stop his documentary about their family. The children stated that they find it “humiliating, embarrassing and invasive in their lives and believe they have been ‘exposed’ enough and simply want it to stop”. The father’s response to the children was to tell them that the movie was going to be premiered at a cinema and that there was going to be “a [reporter] there, a professional musician and [celebrities] may be turning up”. The father denied it was about them but X explained it was all over social media and her friends talk to her about it at school. Exhibit 4 is a copy of a social media post by the father which he concedes he had posted in the week or so before the trial commenced. Not only does the father’s name appear, but also details about the family law proceedings are included. Exhibit 5 is a copy of several pages on a publicly available website entitled “…” (the name of the father’s documentary). Not only is the father named, but there is a photograph of him and the children and intimate information about the children’s feelings and copies of text messages they have sent to the father. While the father denies controlling the webpage, he concedes that nothing goes onto the website without his prior approval.

24. X and Y told the father that they enjoy living with their mother and that they are safe. The father responded – “That’s ok, you have had no choice, have you?”

25. As already noted, the children, in particular, Y and Z would like to see their father but the most recent attempt to do so resulted in causing considerable distress to all three children. Unfortunately, until the father develops some insight, it is not going to be in the children’s best interests to see him.

    WHAT PARENTING ORDER SHOULD BE MADE?

26. The children had a fractured relationship with the mother in the past but since being in her full time care since February 2020 (in the case of all three children) things seem to have improved dramatically. X and Y have said they are happy and safe with the mother. X and Z, in particular, are progressing very well at school. Y seems to be struggling somewhat, although this may be as a result of Ms M’s assessment that she is the most confused and conflicted of the children.

27. The children are well settled in the care of their mother. She has developed a child focus perspective and is now able to put the children’s needs ahead of her own. The mother facilitated the children attending upon Ms G, a child psychologist.

28. All three children should continue to live with the mother. As the parents do not communicate I propose to order that the mother have sole parental responsibility for all three children.

29. The mother told Ms M in January 2021 that she wants the children to have a relationship with the father but knows it “always ends dreadfully, but I have to have a glimmer of hope that he may act decently”. I have seen nothing during the trial that would give me any hope that the father will change his ways and focus on the children. Ms M recommends that the father spend no time with the children. The ICL recommends that the father spend time with the children if the parents agree.

30. Given the ages of the children, I consider that if the children seek out the father at some future time, he should be able to respond to their communication and spend time with the children if instigated by them. However, I do propose to restrain him from initiating arrangements to spend time with the children or initiating communication with them. As the father has on occasions turned up unannounced at the children’s bus stop and made a comment at the family report interviews to the effect that he knows what they are up to, I intend to restrain him from approaching the girls unless by prior arrangement initiated by the children.

31. The father will also be ordered to take all necessary steps to immediately remove from any social media or website any mention or photograph of the children and the family law proceedings. The father is again reminded of the offence created by s 121 of the Act.

32. It is not the primary role of this Court to make findings on every issue about which the parties are in dispute. As already noted each party makes serious allegations against the other in relation to the perpetration of past family violence against the other. Neither parent raised the determination of those competing allegations as matters about which findings needed to be made (other than in so far as they may relate to an unacceptable risk of future harm to the children). I am satisfied that with the orders I propose to make there is no unacceptable risk that the children will be exposed to family violence.

    ISSUES IN THE PROPERTY PROCEEDINGS

1. The parties identified the following issues as requiring determination:

   (1)Should the property order made by consent on 26 July 2019 be set aside pursuant to s 79A of the Act by reason of alleged fraud, suppression of evidence, or duress?

   (2)If the property order is set aside, what order pursuant to s 79 of the Act should be made?

   (3)If the property order is not set aside, should the order be enforced?

2. The father seeks to set aside the property order made by consent by a Registrar on 26 July 2019 (“the consent order”). That order provided, among other things, for the mother to receive a payment of $185,000 by way of two instalments and the father was to retain the former matrimonial home and a property at T Town. The consent order includes a default provision for the sale of the former matrimonial home in the event the father does not pay the sums required. The father paid the first instalment of $80,000 but not the balance.

   APPLICABLE LEGAL PRINCIPLES

3. An order made pursuant to s 79 of the Act that exhausts the power under that section i.e. a final order, can only be set aside in limited circumstances as set out in s 79A of the Act. The father identified his reliance upon ss 79A(1)(a) which provides as follows:

   Setting aside of orders altering property interests

   (1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:

   (a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or

   …

   the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

4. In order to succeed in his application to set aside the consent order the father must establish three things:[14]

   (a)That there is evidence to support one of the grounds in s 79A(1)(a); and

   (b)That there has thereby been a miscarriage of justice; and

   (c)That the Court should exercise its discretion to set aside the order.

   SHOULD THE PROPERTY ORDER MADE BY CONSENT ON 26 JULY 2019 BE SET ASIDE PURSUANT TO S 79A OF THE FAMILY LAW ACT 1975 (CTH) BY REASON OF ALLEGED FRAUD, SUPPRESSION OF EVIDENCE, OR DURESS?

   [14] Lane & Lane (2016) FLC 93-699 at [36] citing Suiker and Suiker (1993) FLC 92-463.

5. Doing the best I can to understand the father’s contentions in relation to his application to set aside the consent order, I have identified a number of points raised by him to establish that there has been a miscarriage of justice. Those points are set out below:

   (a)He signed the consent orders under duress as he was in “no fit state to provide proper instructions”;

   (b)His “disability personal injury money cannot be used as property pool”;

   (c)The sum he was required to pay exceeded the property pool;

   (d)The mother was “claiming the single parent pension while we were still married and I was in the ADF” and did not disclose that she was earning an income from working in a service industry while at the same time receiving a single parent pension;

   (e)The mother “withdrew her superannuation … and I do not know what she spent it on”; and

   (f)The mother failed to state her true earnings at the time the order was made and in particular failed to disclose that she was receiving a single parent pension.

   Duress

6. Other than assert that he was in “no fit state to provide proper instructions” the father does not provide any evidence as to his state of mind at the relevant time and importantly gives no evidence about the mother’s knowledge of his state of mind at the relevant time. He simply relies upon two reports from his treating psychiatrist which will be discussed in detail below.

7. On the day the consent order was made, the parties attended a conciliation conference with a Registrar of the Court but the parties remained in separate rooms throughout. The Registrar moved between the rooms and conducted the conference in what is often referred to as a “shuttle” process. The father had the assistance of counsel on the day and a solicitor leading up to the conference.

8. The father’s evidence in chief in relation to this ground, is contained in one paragraph in his trial affidavit filed 9 July 2021, as follows:

   24. Whilst I was represented at the mediation that occurred that day I was in no state to provide proper instructions, which fact would have been obvious to the Barrister representing me. I have been diagnosed with severe PTSD since 2015. I served overseas on a number of occasions and I have not recovered from that experience. Back in July 2019 I was on stronger medication of Valdoxan 25mgs every night, Sodium Valproate Sandoz 1000mg every night.

9. The father relies upon two reports from his treating psychiatrist, Dr K. In a report dated 18 May 2020, Dr K sets out the father’s history relating to his diagnosis of post-traumatic stress disorder and his attendances upon Dr K during the period 2015 to 20 January 2020 and concludes, “I can see no psychological or psychiatric reason why he cannot have ongoing continuous care for the children”. Dr K says nothing about the father’s functioning or state of mind on or about 26 July 2019 despite seeing the father on 6 June and 5 August 2019.

10. In a second report dated 10 May 2021 Dr K opines:

    …

    Clinically I consider he has ongoing and continuous PTSD which waxes and wanes in severity. …

    What are the effects of [the father] when he is in a stressful situation?

    Under these conditions he will experience a worsening of the PTSD symptoms that he experiences.

    Such symptoms include anxiety, agitation, increased arousal, irritability, feelings of panic and the need to flee, enhanced hypervigilance with scanning for threat, feelings of derealisation such as the feeling the walls are closing in, pervasive sense of distrust in others especially in those of certain religious groups and their appearance, feelings of detachment from others in view of his ongoing high level of arousal; avoidance of many situations as they provoke distress which is worsened at times of stress and may cause him to be house bound, he is intolerant of sudden unexpected noises, movement and so avoids crowds, noisy places and where there is a lot of movement of people - busy places, he has impaired concentration and with worsening stress he is unable to think, unable to comprehend, unable to logically process information as his mind is preoccupied by the perceived threat and his need to seek safety, with ongoing high levels of arousal leads to reduced stamina, endurance and periods of marked fatigue.

    …

    He signed his marital settlement of the 26 July 2019. That was a period of high stress with his children and his ongoing access to them. [The father] describes that during this event he felt pressured to sign the settlement of his marriage. His barrister was ex military and felt he had his best interests at heart, and he trusted him.

    …

    He was distressed that he ignored his concerns that it was wrong as he did not have the money and he was giving away his disability payment that had not even awarded to him at that stage.

    As noted above he had a dissociative reaction with the high levels of arousal and felt he had to flee because (sic) getting anymore agitated.

11. While Dr K refers to a suite of symptoms experienced by the father from time to time, there is no evidence which of those symptoms, if any, the father was experiencing on 26 July 2019 and importantly, no suggestion that the mother knew that the father was experiencing any symptoms. The pressure described by the father to Dr K was said to have been from his barrister, not the mother. Further, not only does Dr K say that the father’s symptoms of PTSD wax and wane, he refers to what is really at the heart of the father’s complaint i.e. his distress (after the event) at ignoring his own concerns about the settlement.

12. In Thorne v Kennedy[15] the High Court of Australia explained the concept of duress in the following terms:

    [15] (2017) FLC 93-807 at 77,729.

    26. The vitiating factor of duress focuses upon the effect of a particular type of pressure on the person seeking to set aside the transaction. It does not require that the person’s will be overborne^. Nor does it require that the pressure be such as to deprive the person of any free agency or ability to decide. The person subjected to duress is usually able to assess alternatives and to make a choice. The person submits to the demand knowing “only too well” what he or she is doing. As Holmes J said in Union Pacific Railroad Co v Public Service Commission of Missouri:

    “It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called.”

    27.Historically, the primary constraint upon an action based on duress was the threats that were recognised as sufficient for an action. The early common law rule was that the duress which was necessary to set aside an agreement required an unlawful threat or conduct in relation to the person’s body, such as loss of life or limb. Even duress in relation to a person’s goods was not a basis upon which an agreement could be avoided at common law, although it was a basis for restitution of a payment of money. The abandonment of this common law restriction introduced a difficult question. This question is whether duress should be based on any unlawful threat or conduct or, alternatively, whether other illegitimate or improper, yet lawful, threats or conduct might suffice. In 1947, Dawson described that question as one “which has chiefly arrested the modern development of the law of duress”.

    (Footnotes omitted)

13. In Dunwoodie v Teachers Mutual Bank Ltd[16] the NSW Court of Appeal rejected the argument that it was not necessary for the other party to a contract, (to be set aside on the basis of duress), to have known of that matter. McColl JA (with whom Ward JA agreed) stated:

    [16] [2014] NSWCA 24.

    [51] ….Knowledge of the facts, actual or constructive, constituting alleged duress by both parties to the contract is an essential element of a claim to have a contract set aside on this basis: see Kesarmal v NKV Valliappa [1954] 1 WLR 380; Witham v Commercial Union Capital Ltd [2002] EWCA Civ 1776 (at [11]) per Laws LJ.

    ….

    [53]      Chitty on Contracts (31st ed, 2012, Sweet & Maxwell, vol 1 at [7-053]) states:

    Where it is sought to avoid a contract on the ground of duress exercised, not by the party seeking to enforce the agreement, but by some third person, the party seeking to avoid the contract must prove that the other party knew of the duress, or had constructive notice of it or had procured the making of the contract through the agency of the party who exercised the duress.

    [54] Chitty cites Kesarmal v NKV Valliappa in support of the proposition in [7-053]. …..

    Under that law knowledge on the part of the transferee is a necessary ingredient. Their Lordships are therefore of opinion that knowledge of duress on the part of the transferee must be established before a transferor can claim to be entitled to have an instrument of transfer which has led to the registration of a proprietor under the Land Code set aside on the ground of duress.

    ….

    [56] I do not accept Mr Kelly’s submission that the review of authorities undertaken by Jacobs JA in Barton v Armstrong (at 606-610) supports the proposition that it is not necessary for the other party to a contract sought to be set aside on the basis of duress to have known of that matter. He did not refer to any particular part of his Honour’s reasons and there is no express support for that proposition in the pages to which he referred. It is unnecessary to set out the complicated facts of Barton v Armstrong. Suffice it to say, that it did not concern the question whether third party duress could be relied upon by its victim to avoid a contract as against a party with no knowledge of the duress.

    …

    [62] In my view the appellant’s proposed fraud and duress defences are not fairly arguable in law, there being no suggestion that the respondent was in any way a participant in, or cognisant of, either the fraud or the duress to which the appellant claims he was subjected.

14. In my view, the father has failed to establish an evidentiary basis for the vitiating factor of duress. The father’s evidence does not set out what pressure was brought to bear upon him or by whom, and perhaps more importantly, does not provide any evidence that the mother knew or ought to have known. Even if I am wrong in finding that duress has not been established, I am not persuaded that the consent order should be set aside given the absence of knowledge on the part of the mother.

    Compensation monies

15. The second area upon which the father focussed during the trial was his contention that his compensation money should not have been included in the property pool. The father relies upon two cases said to support his contention.

16. In Burge & Burge[17] Kent J delivered extempore reasons at the time of making a final property order by consent. His Honour noted that “[t]he central focus of the property proceedings, in circumstances where there was little other in the way of capital held by the parties or either of them in terms of interests in property, was the husband’s receipt of an invalidity benefit by virtue of his former role with the Public Service”.[18] An expert had been appointed to value that interest which was incorrectly referred to as a superannuation interest. His Honour was not dealing with a case where lump sum payments by way of compensation had been received, but rather a case where the husband had an ongoing entitlement to receive a disability benefit.

    [17] [2015] FamCA 178 (“Burge & Burge”).

    [18] Ibid at [2].

17. In Campbell v Superannuation Complaints Tribunal[19] Logan J in the Federal Court of Australia was dealing with an invalidity pension benefit paid pursuant to Military Superannuation Benefits Scheme.

    [19] (2016) FLC 93-724.

18. The current case is not concerned with the father’s pension, which he continues to receive, but rather the lump sum payments received by him during the period 2017 to 2019.

19. There can be no doubt that payments received by way of lump sum as compensation for injury can be included in the property pool for division between parties.[20]

    [20] Williams v Williams (1985) 61 ALR 215.

    Failure to disclose relevant information 

20. In relation to the father’s allegation that the mother “withdrew her superannuation … and I do not know what she spent it on”, there is simply no evidence relating to the mother’s superannuation. The father did not cross-examine the mother about his assertion.

21. The father further alleges that the mother did not disclose that she was in receipt of a single parent pension at the time the consent order was made. The mother disputes the allegation that she was receiving a single parent pension at that time. It seems to be common ground that none of the children were in her care in or about 26 July 2019. This was a period when the children were living with the father. The mother says she was in receipt of a Newstart Allowance and was actively looking for employment. The mother’s sworn evidence proximate to the making of the consent order confirmed this. The father produced no evidence to the contrary.

    Fraud

22. The father alleges that the mother was “claiming the single parent pension while we were still married and I was in the ADF” and did not disclose that she was earning an income from working in a service industry while at the same time receiving a single parent pension. The parties separated in May 2017 and the father was discharged from the ADF in September 2017. Whether or not the mother was receiving a single parent pension as alleged, any alleged fraud on the Commonwealth prior to May 2017 does not demonstrate some matter or circumstance “which had an influence on the outcome of the litigation”,[21] which is what the father must establish to set aside the consent order made over two years after the alleged fraud.

    [21] Suiker & Suiker (1993) FLC 92-436 at 80,472.

    Incompetent legal representation

23. While not specifically raised by the father, it is perhaps raised by implication, given the father’s allegation that the consent order required him to pay more than the total of the property pool and that his barrister did not listen to him.

24. In Holland and Holland[22] the Full Court held:

    To succeed in an application under sec. 79A, the wife must show some circumstance leading to a miscarriage of justice. Agreement to a consent order which may not adequately reflect a party's entitlements under sec. 79 does not, of itself, show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice.

    [22] (1982) FLC 91-243 at 77,341.

25. However, the incompetence of legal representation does not of itself affect the judicial process even though the result may be unjust to the party concerned, but may do so “if the representation is so bad as to be the equivalent of no representation at all or if the representation was perverse; for example if the representative was in league with the other side”.[23]  

    [23] Clifton & Stuart (1991) FLC 92-194 at 78,335.

26. The father contends that as at 26 July 2019 (when the order was made) there was only $60,000 in equity in the former matrimonial home and about $105,000 left from his disability compensation payment received as a result of his military service. Under the consent order, the father was required to make two payments to the mother, the total of which, the father contends, exceeded the property pool.

27. The mother’s evidence as to the legal and equitable interests of each party in property pool at the time of the consent order is as follows:

Asset/Liability	Ownership	Value/Balance
U Street Suburb V	Father	$360,000
National Bank mortgage	Father	($270,000)
Motor vehicle 1	Mother	$8,000
Motor vehicle 2	Mother	$10,000
Motor vehicle 3	Father	$20,000
T Town Apartment	Father	$180,000
Bank Accounts	Mother	$51
Bank Accounts	Father	$109,000
Superannuation	Father	$50,000
Credit Cards	Mother	($9,000)
Car Loan	Mother	($10,500)
Boat	Father	$33,000
Cash	Father	$50,000
Motor vehicle 4	Father	Not disclosed
Total		$530,551

1. Included in above table is a property at T Town. It is common ground that the father paid for the property using part of his lump sum compensation monies. The property is registered in his brother’s name. During cross-examination the father denied he registered the property in his brother’s name in order to keep secret what he had earlier said was intended as a gift to his parents. However in the father’s affidavit filed 9 April 2019 the father said the following:

   49. Following the receipt of the first instalment, I bought my parents a unit at T Town (registered in my brother’s name so as to surprise my parents) at a cost of $139,070 in recognition of the significant financial assistance they rendered to me in earlier years. I wanted my parents to have their own place to stay when visiting my Suburb V home as it was too small. I manage the property for my parents and extended family who use the unit. I do not pay any of the expenses for the unit.

2. During cross-examination the father contended that he owed his brother money at the time of purchase. The father produced no evidence to substantiate that claim. In any event, the father conceded that he has not only managed the property since its purchase but received all the rent from the letting of the T Town property and paid all of the outgoings. The father further conceded that his parents have never been to the property.

1. Also included in the above table is a cash sum of $50,000 which the father concedes was returned to him after the consent order.

2. The mother also contends that at the time of the consent order, the father had failed to account for the majority of the compensation monies. Of the $652,000 received, the father had failed to account for $353,930. She further asserts that “the pool was as high and $1,200,000 with add backs and compensation monies and as low as $450,000 to $555,000”. The mother says that her decision to settle the matter in terms of the consent order was a commercial decision and represented “41% of a pool of $450,000 and 15% of a $1.2 million pool”. I note that the settlement represents about 34.5 percent of the net property set out in the table set out above. The father disputes that there was ever a pool of $1,200,000 and disagrees with the “amounts and numbers” set out in the table but does not descend into any detail.   

3. The evidence does not establish that the result was so far outside what was just and equitable that the father must have acted on incompetent advice.

   IF THE PROPERTY ORDER IS SET ASIDE, WHAT ORDER PURSUANT TO S 79 OF THE FAMILY LAW ACT 1975 (CTH) SHOULD BE MADE?

4. As the father has failed to establish a ground to set aside the order, there is no need to consider this issue.

   IF THE PROPERTY ORDER IS NOT SET ASIDE, SHOULD THE ORDER BE ENFORCED?

5. The consent order made on 26 July 2019 already includes default provisions in the event the father fails to comply with the order. The mother indicated her intention to proceed in accordance with the default provisions and no further orders were sought by her at this time.

   MISCELLANEOUS

   Reasons for refusal of leave to file an affidavit by the father  

6. On the last day of the trial (day four) the father sought leave to rely upon a further affidavit by himself. His application was refused and I indicated that I would provide reasons at a later time. These are my reasons.

7. On 19 February 2021, this matter was set down for trial to commence on 28 July 2021 and directions were made for each party to file one affidavit of their evidence in chief. In addition, each party identified the issues to be determined at trial including the father’s application to set aside the final property order made by consent on 26 July 2019. The father is of course representing himself in the proceedings and suffers from PTSD. Some allowance against strict compliance with the trial directions would be justified.

8. However, the father did not serve a copy of his proposed further affidavit until the third day of the trial.

9. The father did not provide any reason for the late production of the affidavit other than to state that he had focussed on the parenting matter, however, I note that the father did purport to address the property matters in his trial affidavit.

10. While the proposed affidavit set out some detail about what symptoms of PTSD he experienced on 26 July 2019, there is no evidence that the mother knew of the matters about which the father now complains. Certainly, the mother knew that the father had been discharged from the ADF on medical grounds and that he had been diagnosed with PTSD, but as Dr K opines, the father’s symptoms wax and wane. Despite Dr K seeing the father on days proximate to the conciliation conference, he raises no concern in either or his reports about any symptoms observed on those occasions. Dr K supported the father’s capacity to parent the children throughout.

11. The proposed affidavit also set out some detail of the exchanges between the father and his counsel which form the basis for the father’s claim of being pressured into the settlement. However, there is, unsurprisingly, no evidence that the mother was privy to those discussions. The conciliation conference was conducted by a Registrar of the Court and the parties and their respective legal representatives remained in separate rooms throughout the process.

12. In my view, the affidavit did not advance the father’s case to set aside the consent order.

13. Finally, although not determinative, if the affidavit had been allowed, the mother’s counsel indicated the very real possibility of the matter having to be adjourned so that the mother could subpoena the father’s former counsel to give evidence in the matter. The mother is privately funding her legal representation and the further delay and cost to the mother would cause her significant prejudice.

14. Ultimately, this is not a case where the justice of the case required the admission of the affidavit at this late stage of proceedings.

    Referral of parties to appropriate authorities for consideration of investigation as to possible offences

15. During the trial it became evident that the mother may well have received a single parent pension (to which she was not entitled) during the period 2010 and 2017 while still married and living with the father (although for the duration of this period the father was a member of the ADF and often away from the home).

16. The mother concedes having access to the father’s bank account in his absences and working in a service industry for at least part of the relevant period. During the relevant period, the mother concedes paying off a Motor vehicle 1 and travelling to Asia for cosmetic surgery.

17. The mother was provided with a s 128 certificate in relation to certain evidence given by her during the proceedings and as a consequence, that evidence and evidence of any information, document or thing obtained as a direct or indirect consequence of the mother giving evidence cannot be used against her in any proceedings in an Australian court. However, there were documents produced by the father that are independently relevant to the matter that could be provided to the appropriate authorities together with that part of the mother’s affidavit in which she sets out the date of her marriage and separation.

18. In relation to the father, it appears he has breached Court orders restraining him from publishing material in contravention of s 121 of the Act. Indeed on 18 March 2020, he was provided with a copy of that section by another judicial officer and advised to obtain legal advice. Subsequent to the order made on 18 March 2020 directing the father to remove various social media posts and comments, he published the following material:

    (a)A social media post made to a website entitled “…” and dated 7 April 2020 being a picture of the father holding a photograph of his children (Exhibit 5);

    (b)A social media post made to a website entitled “…” and dated 8 April 2020 which discloses copies of text messages the children have sent to the father (Exhibit 5);

    (c)Provided commentary for an article entitled “…” that was published on 8 April 2020 which discloses issues in these proceedings;

    (d)Participated in a podcast that was published in September 2020 where he discussed these family law proceedings and the opinion of experts;

    (e)A film shown at a public event at a cinema on … February 2021; and

    (f)A social media post made on or after 1 July 2021 discussing these proceedings.

19. During the proceedings, it also became apparent that the father may have contravened r 1.19 of the Family Law Rules 2004 (Cth) (as at 1 September 2021, r 15.20 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) by recording his interaction with Ms M, the family report writer, and his three children during the family report interviews (Exhibit 3).

20. There is no doubt the Court has power to refer the matter to the appropriate authorities if evidence of possible offences come to the attention of the Court, particularly those that may involve a fraud on the Commonwealth.[24] Whether or not a referral is made is within the discretion of the Court and “[q]uestions of degree must be relevant”.[25] The Court is not under a duty to report all matters.[26]

    [24] In the marriage of P and P (1985) FLC 91-605 at 79,921. See also: In the marriage of T and T (1984) FLC 91-588 at 79,746.

    [25] Malpass v Mayson (2000) FLC 93-061 at 87,966, [31].

    [26] Ibid.

21. The mother’s counsel submitted that no referral of the mother should be made in this case as it was not in the best interests of the children for that to occur. The mother’s counsel further submitted that having regard to the father’s mental health issues, while the father’s breaches may well be significant, he would not have had the wherewithal to check the rules. Finally, it is submitted on behalf of the mother, that she “wants to draw a line in the sand and doesn’t see any benefit in [the father] having to deal with the consequences of that”.

22. The father supported the referral of the mother and himself for investigation of possible offences.

23. In my view, given the seriousness of the possible offences, I consider it appropriate to refer certain documents including recordings to the appropriate authorities. It is a matter for them whether any investigation and prosecutions follow.

I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.

Associate:

Dated:  2 September 2021