Toohey & Dantes (No 6)
[2025] FedCFamC1F 302
•26 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Toohey & Dantes (No 6) [2025] FedCFamC1F 302
File number: SYC 6702 of 2019 Judgment of: BOYLE J Date of judgment: 26 May 2025 Catchwords: FAMILY LAW – PARENTING – Spend time with arrangements – Whether the father should be restrained from approaching and contacting the mother and the child – Allegations of family violence – Whether either party has mental health issues that may impact on their care of the child – No time between the child and the father ordered on a final basis – Injunction ordered Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC Cases cited: Isles & Nelissen (2022) FLC 94-042
Pickford & Pickford [2024] FedCFamC1A 249
Division: Division 1 First Instance Number of paragraphs: 135 Date of last submissions: 14 March 2025 Date of hearing: 16, 18, 19 December 2024; 29 April 2025 Place: Sydney Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: Santone Lawyers Pty Ltd Counsel for the Respondent: Mr Friedlander (16 December 2024) Solicitor for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Sperling Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
SYC 6702 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TOOHEY
Applicant
AND: MR DANTES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
26 MAY 2025
ON A FINAL BASIS THE COURT ORDERS THAT:
Procedural
1.All previous orders shall be discharged.
Parental responsibility
2.The Mother have sole parental responsibility for the child X born 2016 (“the child”) and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the child.
Live with
3.The child shall live with the Mother.
Restraints
4.Pursuant to section 68B of the Family Law Act 1975 (Cth), the Father be restrained by injunction from:
(a)Contacting the Mother or the child in any way including instructing a third-party to contact the Mother or the child;
(b)Approaching within 500 metres of the Mother or the child; and
(c)Approaching within 500 metres of any of the following places:
(i)The Mother’s place of residence, including L Street, Suburb O NSW; and
(ii)The mother’s place of employment; and
(iii)Any school/after-school care that the child may attend.
5.Pursuant to s 68C of the Family Law Act 1975 (Cth), the injunction in Order 4 herein is for the personal protection of the Mother, MS TOOHEY and the child X born 2016 and if a Police officer believes on grounds that the Father MR DANTES to whom the injunction is directed, has breached the injunction, they may arrest him without a warrant.
6.The Mother shall provide a copy of these Orders to any school that the Child and Z may attend.
7.The Father, by himself, his servant or agent is hereby restrained from removing or attempting to remove the Child from the Commonwealth of Australia.
Release of the Family Report
8.Leave is granted to the Mother to provide a copy of the Family Report of Ms BB dated 19 March 2024 to her and/or the child’s mental health practitioners.
Overseas travel and travel documents
9.The Mother be at liberty to remove the child from the jurisdiction of the Commonwealth of Australia.
10.The necessity for the consent of the Father to the issue of passports for the child be dispensed with and the Mother be at liberty to solely make any application/s for the issue of Australian travel documents (including passports) for the child pursuant to the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provisions).
11.The child’s passport be held by the Mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BOYLE J:
The mother seeks that X, aged 8 years, spend no time with his father. The father seeks time. There is no dispute that X should continue to live with the mother, and that she should have sole parental responsibility and decision-making authority for him.
X has not spent any substantial time with the father since mid-2019. The mother alleges that the father perpetrated family violence, particularly coercive and controlling behaviour, which he denies. The father alleges the mother perpetrated family violence, which she denies.
As I will explain in these reasons, I have found that there is an unacceptable risk to X from the father. The orders do not allow for time between the father and X, and they restrain the father from approaching or communicating with both the mother and X.
BACKGROUND
The parties started living together in late 2015. They were married in 2017. X was born in 2016.
The mother has a child of a previous relationship, Z aged 13. Z lives with the mother and spends time with his father on average four nights per fortnight.
The father has a child of a previous relationship, Y aged 12. Y lives with her mother and spends no time with the father pursuant to orders of this court. The matter was listed in July 2023 for a 7-day hearing. The father participated on the first day of the hearing and then filed a Notice of Discontinuance. Final orders were made after the conclusion of the undefended hearing.
The parties separated on a final basis on 13 February 2019. X was over two years. He remained with the mother and spent time with the father as agreed.
On two occasions in mid- to late-2019, the father removed X from daycare without the mother’s knowledge.
In late September 2019, the mother ceased facilitating time between X and the father. She commenced proceedings the following month for parenting and property orders.
An Apprehended Domestic Violence Order (“ADVO”) was made in late 2019 for the protection of the mother against the father.
On 16 October 2019, orders were made for X to spend time with the father supervised each alternate Saturday. Orders were made for telephone or video communication twice each week. The father was restrained from approaching or coming within 500 metres of the home at Suburb O, X’s daycare, and Z’s school. The two nominated supervision providers did not agree to provide supervision. A further supervised service provider was approached and declined.
The father filed an Application in a Proceeding on 25 February 2020 seeking to set aside the earlier orders, which was dismissed on 7 July 2020. On 2 June 2021, orders were made by a Senior Judicial Registrar suspending the interim parenting orders. The father was restrained from approaching or contacting X.
The father filed an Application for Review, and on 17 December 2021 the orders of 2 June 2021 were set aside. Orders for professionally supervised time, and weekly communication were re-instated. Supervised time has never occurred.
The father filed Applications in relation to his communication with the Independent Children’s Lawyer (“ICL”), and communication between X and Y. The Applications were dismissed in September 2020.
The father was charged with breach ADVO and not convicted in late 2022. In mid-2023 he consented to a final ADVO for a period of 12 months.
The father sought to vary the parenting arrangements in December 2022. That application was dismissed on 15 March 2023 following an interim hearing. The father was declared a vexatious litigant on 8 June 2023.
After the release of the Family Report in March 2024, the mother ceased facilitating communication between X and the father.
The final hearing commenced on 16 December 2024. Consent orders were made resolving property matters at the start of the hearing.
PROPOSALS OF THE PARTIES
The mother seeks orders that X spend no time with the father, and she solely have parental responsibility and decision-making authority. She seeks orders restraining the father from approaching or communicating with her and X. The ICL supports the mother’s orders.
The father seeks orders for time with X Friday to Sunday each fortnight, half of the school holidays, and on special occasions, and regular electronic communication. The father resides in Victoria, and travels regularly to Sydney. He proposes returning to live in Sydney in the future. He concedes sole parental responsibility and decision-making be exercised solely by the mother.
DOCUMENTS RELIED UPON
The parties relied on the affidavits set out in their case outline documents. The father relied on further affidavits, without objection. All the documents he relied on are set out:
(a)Affidavit of Mr Dantes filed on 3 June 2024.
(b)Affidavit of Mr CC filed on 10 May 2024.
(c)Affidavit of Ms DD filed on 21 June 2024.
(d)Affidavit of Ms EE filed 10 May 2024.
(e)Affidavit of Mr FF filed 10 May 2024.
(f)Affidavit of Mr GG filed 10 May 2024.
(g)Affidavit of Mr HH filed 10 May 2024.
(h)Affidavit of Ms LL filed 10 May 2024.
The mother, the father and Ms Vader were cross-examined. None of the other witnesses were required for cross-examination. The Court Child Expert who prepared the Family Report was cross-examined by all parties.
The evidence of the father’s witnesses is before me unchallenged, as the father has noted in his submissions. I am required to consider the weight to be given to the material, so far as it is relevant to the issues. Many of the affidavits were sworn in 2023, although filed later. Much of the material is based on information provided by the father to the witnesses about his relationship with the mother, rather than their direct observation.
None of the witnesses for the father detail how often they saw the father with X, nor make particular observations about those interactions. Some have never observed them together. The evidence of the father’s witnesses is referred to in more detail within these reasons, where it is relevant to the issues to be determined.
The father was represented by counsel at the start of the hearing pursuant to an order under s 102NA of the Family Law Act 1975 (Cth) (“the Act”). Although the father decided to cease instructing his counsel during the hearing, Mr Friedlander remained in court and assisted the father, which was no doubt of assistance to him, and to the Court.
At the conclusion of the evidence, directions were made for the parties to file written submissions. This was in accordance with the father’s preference to make submissions in writing. There was an issue during the hearing about text messages on Facebook Messenger which the father sought to tender. The father no longer had access to the messages on his devices. The mother disclosed the material shortly before the start of the hearing. The documents were provided in a manner that made it difficult to discern who was the sender and receiver, and the date of the message. At the conclusion of the evidence, the father was granted leave to tender Facebook Messenger messages on a timetable, provided the sender, receiver and date of the message were clear.
The father took issue with the ICL’s submissions as late, and critical of the Facebook Messenger messages. The matter was relisted as there appeared to be a dispute about the tender of the documents. Ultimately, material sought to be tendered by the father which complied with the leave provided, was tendered without objection.
A number of other documents were tendered and marked as exhibits during the course of the hearing. I have had regard to that material, as well as the affidavits relied upon by each of the parties.
THE LAW
Part VII of the Act deals with the making of parenting orders. Section 60CA of the Act provides that the court must regard the best interests of the child as the paramount consideration in making a parenting order. Section 60CC (2), (2A) and (3) of the Act set out a list of matters to be considered in determining what is in a child’s best interest. It is not an exhaustive list.
In this matter there are allegations of family violence and mental health issues, which could expose X to family violence or abuse or neglect. The court is required to consider what orders would promote the safety of the child. An assessment of risk is required in this matter. Where there are allegations of risk, the analysis requires consideration of past conduct to assess whether there is a risk to the child, and the magnitude of that risk. The assessment of risk is an “evidence-based conclusion” (Isles & Nelissen (2022) FLC 94-042 at [85]). The court must then consider whether that risk is capable of being mitigated by imposing restraints or conditions.
I will have regard to the other relevant matters set out under s 60CC of the Act as they arise in these reasons.
ISSUES
The issues in this matter are:
(a)Did either party perpetrate family violence?
(b)Does either party have mental health issues that may impact on their capacity to meet X’s needs?
(c)If the answer to (a) or (b) is yes, can orders be made for time that ameliorate risk and promote X’s safety?
(d)Should the father be restrained from approaching or contacting the mother and X?
Did either party perpetrate family violence?
The father’s allegations of family violence against the mother
The father alleges family violence by the mother from 2015 to 2019. He refers to her anger and rage towards him, Z, X and Y. He says her behaviour caused him to leave the home to stay in hotels, or get out of the car and walk home to remove himself from the situation. He gives evidence of a trial separation in 2018.
His evidence is the mother’s anger was worse if she did not sleep well. He took care of X overnight once he was weaned. The affidavit does not describe or particularise the alleged incidents of the mother’s anger.
The father refers to financial abuse and control by the mother. He refers to her demanding control over increasing amounts of household finances, and his income. This eventually meant he gave her half his salary, which she received in addition to her own income, and any other government or child support. No evidence supporting this assertion was relied on.
With respect to the allegations of family violence the father has tendered Facebook messages he sent during the relationship. The messages tendered are generally without the context of surrounding messages passing between the parties at that time, although there are often several from the father on the same day. It is not possible to know whether the texts were responding to a message as part of a longer conversation.
Another difficulty is the documents tendered contain transcribed versions of the messages. It also comprises the text, the date, the sender, and the recipient. Some of the messages have a preamble to that information, where the father describes or provides a short version of the message, before the relevant information and message. Unfortunately, there are also slightly different versions of some messages within the documents. Some are set out twice, though from the date, time and substance it is clearly the same message. I have accepted into evidence the version marked bold, rather than any summary version. None of the differences appear in my view to change the meaning of the texts, for example, “I can’t even roll over in bed for fear of moving the sheets and you getting angry as the other night”, and “I can’t even roll over in bed for fear of moving the sheets and you spitting venom as the other night”. There is another which contains “ducking” and “duck”, which appears to be “fuck” autocorrected: “… Over and ducking over. … I wake up thinking I am going to ducking die ... I just don’t want any fucking conflict …”.
The earliest messages tendered were sent two months prior to X’s birth in 2016: “[Ms Toohey]. I do not want to come home. I have lost my credit card so it will be hard for me to stay somewhere but I will work something out”; “I don’t want to come if you are angry. I can stay away. Let me know.”; “The only issue is that you are getting angrier … I was looking forward to that with you and [Z] this weekend, instead I am driving around in circles.”
It is not possible to understand what was happening between the parties at this time, as these messages are in isolation. I note that the father’s affidavit makes no reference to any incident occurring in 2016.
On 6 January 2017, between 6.20 pm and 8.15 pm the father sent a number of messages to the mother. His affidavit makes no reference to what prompted these messages. The first message reads: “[Ms Toohey] you are sometimes very hard to love. I mostly live in fear of your moods. You do not realise the damage you do. …” Ten minutes later he messaged:
You are constantly angry. I can’t even roll over in bed for fear of moving the sheets and you spitting venom as the other night. The household is at the whim of your moods it always has been. I understand that motherhood and lack of sleep can be tough, but your fatigue is no one else’s fault. Just try to be less angry at everything.
About an hour later he messaged:
I just cannot talk to you about anything, whether it be finances, the divorce, my career and job apps, depression, feeding [Z] or even biscuits. When I do talk the most common reaction is a hiss and passive aggression. You are posses [sic] off about everything. I can live with that but in return I need you to stop having a go at me about everything. Just stop being so fucking angry.
Then 10 minutes later: “Every fight we have is devastating to our children and our relationship with them.”
Then 15 minutes later:
If you didn’t constantly have a go at me and weren’t so angry about everything I could be there for you. Instead I fear being around you and can’t get close to you. I am here because we have a family, and because of what we had and what we wanted. Just stop being so angry and stop having a go at me.
Then 10 minutes later:
I leave because I cannot do these conflicts. I’ve said it to you everytime, I’ve left Every time just to get away, I’ve even stayed in hotels just down the road. I will say it again. I cannot do these conflicts where you constantly have a go at me on the same point over and over. Three times yesterday … I just don’t want the conflict. Think about it before you a [sic] go at me. Stop being so angry. That is the only way we ever have of getting close again. I told you once before that these arguments make me tthink [sic] of death. Over and over. Over and ducking over. Again and a ducking again. I wake up thinking I am going to ducking die. That’s how I feel ok? Its the end of the ducking world stuff and I have felt it for four duking years. I just don’t want any fucking conflict. Not at home.
The messages are without any context of messages from the mother. It is not clear if there was an ongoing text conversation, or intervening telephone calls. As a consequence, there is no evidence of what was occurring between the parties. The mother was cross-examined about difficulties in their relationship from October – November 2017. Incidents of coercive and controlling behaviour towards the father during the relationship were not put to her.
There is evidence of three text messages from the father to the mother on 19 January 2018 and 14 May 2018 which refer to the father experiencing the mother as angry, and problems in their relationship. There is one message provided of the mother to the father on 20 July 2018: “You’re such a fucking drama queen.” There is no evidence of what that relates to. The father responded, “I can’t help it. It is my anxiety. You have no idea how I felt the last two days.”
Dr H was consulted by the father from mid-2015 to mid-2018. There are various of his records tendered in evidence. There is no complaint by the father about the mother in the records of Dr H. Instead, he refers to her as positive and supportive, and it is noted they have a good relationship.
At the report interviews the father complained about the mother’s behaviour being controlling. The report writer notes that the only specific example he gave was that she did not allow him to exercise after work, so he had to exercise on weekends. The mother’s evidence is that she sought the father’s assistance with drop offs and pickups so that she could get to work on time, which he resisted. I find this could not form a pattern of controlling behaviour without further evidence.
I accept the text messages tendered by the father demonstrate his unhappiness in the relationship, that there were arguments, and he experienced the mother as angry at times. The father’s witnesses refer to what he told them about fights, and that she was angry and abusive towards him. The paternal grandfather refers to an occasion where he observed the mother “attack” the father when they were having dinner out. His brother refers to occasions in 2019 when there were confrontations with the mother “where she was angry and abusive” in front of the children. The paternal grandmother refers to learning over time that the mother was not a nice person and did not treat her son well. There is insufficient detail in these affidavits for me to reach a conclusion about the mother’s conduct based on their evidence.
Ms LL is a long-term friend of the father. She has never met X nor Y. She refers to having an intimate relationship with the father from late 2017 into 2018. She says the mother sent “abusive and threatening messages that made me very fearful” in 2018, after the mother became aware of their affair.
The father’s evidence is that the parties separated for a period in 2018, which was when he had a brief relationship with Ms LL. Ms LL’s evidence is their relationship started in 2017. The mother does not give evidence of a separation in 2018, nor was she cross-examined about that. I note that X was around two years old.
Ms LL’s knowledge of the mother is predominantly through the father. She does not include in her affidavit any messages she received from the mother, which would permit me to conclude the messages were abusive and threatening to her, or formed part of a pattern of abusive behaviour against the father.
Mr GG has been a friend of the father for around 30 years. He has met the mother and attended the parties’ wedding. He makes no criticism of the mother’s conduct before 2017. In 2017 the father told him that the mother was “quick to anger and kept him under constant duress”. He worried she was using him financially. Mr GG found the mother to be “mostly gruff, confrontational and quick to anger about trivial things.” He provides no specifics about her conduct that would enable me to find she was gruff, confrontational and quick to anger.
Mr HH stayed with the parties on multiple occasions from 2014 to 2018. He makes no negative observation of the mother’s conduct. He formed the opinion that:
The demands of the role, in combination with demands of home life, his loss of self-confidence and, as it appeared to me, unrelenting pressure from the conflict with [Ms Vader], had become too much to continue to bear.
The father raised with Mr HH his financial contributions, and his frustration that “[Ms Toohey’s] mother, and [Ms Toohey] by acquiescence, continued to maintain that he was a mere renter at the property.” Mr HH was concerned about the situation the father was in. His evidence does not permit me to conclude the mother perpetrated family violence against the father.
Nothing in the father’s evidence describes the mother’s conduct that caused him to send the texts tendered. It is not possible for me to conclude that the father was subjected to family violence by the mother on the basis of the evidence available. I accept that arguments with the mother, and her anger on occasions, made the father stressed and anxious. Disagreements between a couple are not necessarily family violence. The conduct of one party during arguments may fall within the definition of family violence if it involves violent or threatening behaviour that coerces or controls a person, or causes the person to be fearful. The examples set out at s 4AB(2) of the Act include repeated derogatory taunts or unreasonably denying the other person financial autonomy. Without any evidence that tells me what happened I cannot conclude that family violence occurred.
The father in his affidavit refers to 2019 when the mother said to Y: “that is not the way we behave in this house! You are a terrible child.” He then refers to seeing the mother shove and berate Y in 2019. The first part of the statement only was put to the mother in cross-examination, which she denied. The father says he observed Y to be fearful of the mother, and he did not leave her alone with the mother thereafter. The parties separated in 2019. This is the only evidence the father refers to specifically regarding the mother’s conduct towards Y. I do not accept that I can draw from this that the mother perpetrated family violence towards Y and/or the father.
On 26 September 2019, the father reports X saying, “Don’t touch that Daddy or Mummy will get angry again.” He refers to the mother ceasing to parent in relation to X’s developmental steps, such as toilet training, moving from co-sleeping, using a pacifier and brushing his teeth. The father was spending time with X on weekends from February 2019 to September 2019. His absence means the mother was the parent solely caring for him. The father’s allegations are not supported by the evidence about X from daycare and school. There is no report of him having developmental difficulties, not any fear of the mother. Further, the report writer noted that the mother appeared to be very attuned to X’s needs, particularly his emotional needs. The evidence, and the father’s position on orders that X lives with his mother and she have sole parental responsibility for him, does not support a finding that she lacked capacity to care for him or put him at risk.
The mother lived in the property owned by her mother with Z, prior to the parties’ relationship. The parties rented the property for four years. The father asserts his entitlement to continue residing in the property following separation, and that he was entitled to 90 days’ notice by the landlord, the mother’s mother.
The father complains that the mother removed all family pictures, and images of him after separation. This involved some 50 framed photographs of the father and various combinations of the three children of the parties, and paternal grandparents. The father put them back up with Y’s assistance when spending time with her at the home. It is difficult to understand why he would do this. He says Y was upset the pictures had been removed. That does not seem to be sufficient justification for re-hanging the pictures. The father’s complaint appears to be about his entitlement to the home being equal to the mother’s, and that by removing the pictures she was seeking to erase him.
The father could not have intended remaining in the home on a long-term basis – it was owned by his former mother-in-law. The mother had lived there before their relationship and was intending to continue to reside there. In those circumstances logic would suggest it was a matter for the mother how she decorated the premises, even if he found her conduct hurtful. Instead, the father made it a source of conflict.
The father regards the mother as interfering with his contact with Z. He complains the mother removed his name from those who could collect Z from school, which meant that he could no longer take him to after-school activities. Z has regular time with his own father. There is no evidence that Z’s father supports an ongoing relationship with the father. The evidence from the father that he offered to assist Z’s father obtain more time with Z, did not suggest he has any ongoing relationship with Z when with his father.
The father regards the mother as conspiring with Ms Vader to cause him detriment. He told the report writer that they both made false allegations of family violence about him. The father complains in submissions that Ms Vader’s cross-examination “was not completed”. She was cross-examined by his counsel without any constraint on time imposed by me. Her cross-examination had not concluded at the end of the first day, and she returned to the witness box the following day.
Ms Vader has a five-year AVO for her protection against the father. She agreed there had been no breach of the current AVO, and that the father was not convicted of an alleged breach of the previous AVO. Ms Vader has had no direct communication with the father for over 10 years.
Much of the cross-examination of Ms Vader was about whether the father had a box containing guns at their home during their relationship. She maintains the father was in possession of firearms he did not hold a licence for during their relationship. She complained to the police. He was never convicted of any offense related to unlicenced firearms, or firearms being incorrectly stored. The evidence does not permit me to find that the father was in possession of unlicenced firearms. There is no evidence he had any on the premises or otherwise during the course of the relationship with the mother. The issue with respect to guns was not a significant feature of these proceedings, other than that the mother knew he engaged in recreational shooting and was experienced with firearms.
Ms Vader gave evidence of a deterioration of the father’s conduct in early 2014. She called the police to the home in early 2014 because his behaviour made her fearful. She was in the bedroom, and he picked the lock on the bedroom door. He punched a box in front of her and behaved and spoke aggressively. She sought assistance from her brother to come to the home. She then called the father’s brother, Mr CC, who suggested she call the police if she was concerned.
During the course of the incident the father left the home with Y, unbeknownst to Ms Vader and the police who were waiting outside. He returned after about 15 minutes with Y. He was later was taken to T Hospital and scheduled. Ms Vader was not challenged in cross-examination about any of these matters.
The father attended at the offices of Ms Vader’s solicitor in October 2019 and videotaped the receptionist. Security guards were hired by the law firm due to concerns about the father’s conduct. He attended on two further occasions.
The mother and Ms Vader started communicating from about September 2019. In February 2021, Ms Vader telephoned the mother to advise her that the father attended Y’s after-school care at the school, because she was concerned for X. I accept this communication was reasonable in the circumstances. Orders were made in this court on 16 October 2019 which prevented the father from coming into contact with Y or approaching her school, vacation care or extra-curricular activities. There is nothing in the evidence that supports a finding that the two women conspired to cause harm to the father. The two women have reconciled their previously fraught relationship. A benefit to X of the two communicating is that X can have a relationship with his sister Y.
The mother’s allegations of family violence against the father
The mother alleges a pattern of coercive and controlling behaviour by the father, which increased from separation. During the relationship the father put household bills in her name, with direct debits coming from his accounts. At times when they argued he stopped direct debit payments so that there was a default on bills without her knowing. She refers to emotionally abusive behaviour from 2016, at the time final orders were made for Y.
The father denies any family violence during the relationship or after. There are a series of texts from July 2017 to September 2018 from the mother to the father. The texts are positive about the father as a father, and indicate a good relationship between them, such as “You’re a great dad” and “You really are a great husband and father”.
The mother refers to an incident when she walked Z into school, and the father and X were in the car. The father moved the car. When she came out of the school he was honking the horn, and yelled at her, “Can’t you recognise your own car, you stupid twat? You’re in there chatting with the mummy set, while your subservient husband sits in the car.” X was upset before she left the car, and more so on her return. Her impression was that the father was very agitated because X was crying.
The mother gave evidence that the father yelled at Z at times, particularly if there were problems between him and Y. He has called Z a bully and a liar and hit him on the shoulder. On one occasion during a car trip, he flicked Z in the face.
There is no question the proceedings with Ms Vader made both parties extremely stressed and put their relationship under significant pressure. This is clear from the texts between them about Ms Vader. As noted above, arguments alone do not amount to family violence.
There is no evidence about financial control other than the mother’s complaint. Neither party cross-examined the other about this. There is insufficient evidence to make a finding of financial abuse during the relationship.
I accept that there is evidence of the family not coping emotionally at times of stress. The mother gives evidence of times the father yelled abuse at her, such as in late 2017: “If you ever take my children away from me, I will fucking kill you!” The father agreed he could have said he would kill himself. The mother was concerned about the father’s mental health, in particular anxiety and risk of suicide.
Looking at these matters together I accept that the father’s behaviour caused the mother to feel fear, and a need to appease the father. Considering these matters with what occurred after August 2019, I accept that the father perpetrated family violence during the relationship. It is not necessary that he intended family violence by his conduct. As stated by McClelland DCJ in Pickford & Pickford [2024] FedCFamC1A 249 at [16]:
To introduce the notion of intention into the definition of family violence, by reference to case law or otherwise, would be to introduce an unnecessary and unwarranted atextual constraint on the ability of a victim of family violence to establish that they and/or their children have been adversely impacted by coercive and controlling behaviour.
In February 2019, the father told the mother he wanted to separate. He then spent time working in Queensland and overseas. He returned on weekends to spend time with the children, and by agreement stayed at the home. On 7 August 2019, the mother asked the father to stay elsewhere. She changed the locks at the home shortly thereafter. The father entered the home and put superglue in the locks. The mother replaced the locks. The father changed the locks. He secured planks of wood to the floor down the hallway of the home to prevent use of the front door. He broke a window to get into the property when he was locked out. The mother had taken down photographs which included the father. The father put photographs back up, assisted by Y during a visit.
The father resided in the property until 20 October 2019. Z and X were living with the mother. She needed accommodation near Z’s school and X’s daycare and rented an Airbnb for herself and the children. This no doubt caused disruption for both children.
On 5 September 2019, the mother attended the property. The father was present. There was an argument about the father living in the home. He is clear that he was legally entitled to be in the home – he had paid rent over four years and contributed to the upkeep and improvement of the property. There was an agreement he could return to the property after separation, as he was working interstate and had nowhere to stay in Sydney to see the children. He left his possessions there. In his view absent notice by the landlord, his former mother-in-law, to vacate he was entitled to 90 days’ notice.
The father denies the mother had any basis to be frightened by an article titled “[…]” on his Facebook page, as he was concerned about her violence to him. That does not explain why he posted the article on his Facebook page. Whether or not it was posted to his group rather than broadly, I accept he knew the mother would see it. Leaving videos of shooting scenes on YouTube which could be accessed by the children was also, I accept, conduct intended to unsettle her. That the father has extensive experience with firearms could be expected to add to her concerns.
The mother complains the father left military style clothing in the home, which she believes was designed to frighten her. The photograph tendered shows a shotgun belt, and black vest and pants. The father says it was a Halloween costume and was with Halloween costumes for the children. The father could have obtained any number of outfits for Halloween. I accept it was provocative for him to leave these items in the home for the mother to find. Similarly, whether he found the details of the mother’s psychologist on a note on a kitchen bench or by accessing her computer, contacting the psychologist was not appropriate. The father says he did so to see if couples counselling was possible. He wrote to the psychologist “… [Ms Toohey] has no insight and can be compelling deceitful”. I do not accept that he contacted the psychologist to ask for counselling assistance. I accept his conduct had the potential to undermine the mother’s relationship with her psychologist.
In late 2019, the mother complained to the police about the father’s conduct, including remaining in the home, changing the locks, going through her belongings, retaining and accessing her laptop, and contacting her therapist. The mother wanted the police to get the father to leave. The police explained there was no basis for them to restrict him from the home. She told the police she was only afraid of the father when she was living with him, and she was not going to do that. The police attended: the father complained he was putting X to bed. The police said they would return. They attended the following day, and the father denied the allegations about taking the mother’s laptop. He remained in the home.
The father took a legalistic approach to this matter which ignores the reality of the situation for X and Z. He complains that the Residential Tenancy Agreement between the mother and her mother was backdated. I accept that it was. I accept that the mother was attempting to demonstrate that she had resided at the property since 2013. The father did not dispute that.
The mother lived in the property from 2013, relying on her agreement with her mother rather than a lease. The property has been home to both children all their lives. In February 2019 the mother agreed to the father using the property to spend time with the children, including Y. After about six months, she did not want the father to be in the home anymore.
The father could have obtained accommodation through Airbnb, as the mother did, until he secured rental accommodation. Instead, he behaved in a manner that was bizarre and frightening. He put super glue in door and window locks, constructed a wooden barricade down the hallway floor to stop the front door opening, and broke a window. He did so to prevent the mother accessing the home.
Around separation many people act in a manner they come to regret and develop insight into their behaviour. When cross-examined the father acknowledged he was not proud of some of his behaviour, and both parties acted poorly. Notwithstanding that acknowledgment he continued to assert that he was within his rights to remain in the property. This does not suggest he has developed insight into his behaviour, and its impact on the mother and X. That the police did not remove him from the home as requested by the mother, does not vindicate his actions.
In late 2019, the father followed the mother after seeing her in the local area. He did a U-turn in order to follow her. She drove to the police station. She was with her mother and had X in the car. I accept she was frightened by his conduct, which would have had an impact on X. Deliberately following her in the car was frightening and dangerous. Both drivers were likely to be distracted from the main task of driving a car by being pursued by, or following, their former partner.
The father had not seen X for eight days. His evidence is he followed the car so he could see X. When the mother stopped at the police station, he tried to take X from the car. The mother locked the doors and removed X to the police station. The father waited outside, despite police asking him to leave. The mother left after police asked him to enter the police station. The father had a panic attack at the police station. He ran away from the ambulance called by the police. The father attributes his difficulties that day to his experience of abuse, which has made him wary of authority. I accept that stress has a significant negative impact on the father’s functioning, and that it would assist him to have ongoing psychological support and assistance.
The father collected X from childcare over the period from August/September 2019 without advising the mother he was going to do so. His approach to this was that he was entitled to do so, and if it caused the mother concern so had her behaviour caused him. He did not appear to consider that it may cause X upset to not know what was happening.
On 16 October 2019, orders were made for X to live with the mother and spend supervised time with the father and restraining the father from approaching or coming within 500 metres of the home at Suburb O, X’s daycare, and Z’s school.
The father wrote to X’s childcare in June 2020. He requested that he collect X for lunch. He made no reference to that being outside the orders for supervised time. When cross-examined he said he wanted to see if the childcare would provide supervision. That was not the request he made in correspondence. I accept that he was acting outside the scope of the orders of 16 October 2019, and the mother would reasonably have been concerned about his conduct on finding this out.
The mother complained that the father used AVL communication with X to be able to look around the home, which she found intrusive and frightening. He has said to X that it is up to his mother whether he sees him, or that he could ask his mother if he can attend an activity with him. This puts pressure on X by putting him into the middle of conflict when there were no orders for face-to-face time unsupervised.
The mother’s fears are, she says, amplified by her knowledge of the father’s conduct towards Ms Vader in previous proceedings. She supported the father in those proceedings by filing an affidavit, and assisted time between Y and her father. She also complained by text about Ms Vader’s conduct towards her, and the stress she created for her family.
The father’s conduct after separation included occupying the house and putting superglue in locks, following her in the car, collecting X from childcare without notice, and selecting Halloween costumes of a military style. This behaviour was not one-off, it was sustained over a period of time. It is reasonable that she was afraid. The report writer noted that the father’s behaviour deteriorating after separation by becoming more unpredictable and dangerous, can be due to him feeling he is losing control.
The father was unable to constrain his behaviour around X. X was in the car when he followed the mother, causing her fear. The father attempted to remove X from the car after following it. X would have been aware he and his mother and Z were not living at the home because of problems between his parents. The father’s behaviour around him has been unpredictable, and at times violent. These matters have all contributed to the mother’s fear about him spending time with X. The father referred to some of the decisions he made at the time as “mistakes”. In my view this demonstrates his failure to recognise the harm in his actions and shows no insight. I accept the father perpetrated family violence.
Do either party have mental health issues that may impact on their care of X?
The father suffered abuse as a child. He has had significant trauma as a consequence. He referred to preparing his affidavit for these proceedings “under duress”, because looking at the material made him overcome by grief exacerbated by his childhood trauma. He also regards the mother as putting him under duress.
The father sought mental health support from Dr H from 2015 to mid-2018, when he was discharged from further treatment. The father was in proceedings with respect to Y over this period.
There was an issue about his conduct towards Ms Vader’s legal representative. Dr H noted on 14 June 2017: “Is emailing at high frequency to a legal representative classified as harassment? Either way, I am advising against it, and if it continues and upsets [Ms Vader], I would refer [Mr Dantes] elsewhere and excuse myself.” Information about the frequency of the email communication to the solicitor presumably came from the father, as he was the source of information to his psychiatrist. The advice does not appear to have affected the father’s conduct.
In late 2019, the police attended at the home after contact from the father’s brother. According to the records the father said to his brother, “21 men commit suicide a day. I’ll be one of those statistics.” The father said he was anxious and panicking but not suicidal and should not have said that to his brother. The father refused to open the door and spoke to the police through a metal screen. Police requested an ambulance to attend. The paramedics spoke to him and determined he could not be scheduled as he was not at a significant risk. He told them he did not want to go to hospital as he was due at court the next day, and he was concerned that would have an adverse impact on the court proceedings to see his child.
From October 2019, the father consulted with Ms G, clinical psychologist. The purpose of counselling was to address anxiety and mood problems. She provided a report on 30 January 2020. She met with the father on a number of occasions prior to writing the report. He reported panic attacks on a few occasions of extreme stress, and low mood. These issues were noted as being in the context of marriage breakdown and separation from his children.
In the report, Ms G notes the father engaging well with therapy and presenting with reasonable insight into his vulnerabilities and strengths. She understood he was committed to continuing therapy. She opines that the father does not meet the criteria for a personality disorder. At paragraph 21 she states he has a:
… sensitive personality structure, which can become vulnerable when confronted with extreme loss and/or threat. This manifests in intense feelings of anxiety, agitation or panic attacks. In the past, he had reacted strongly to the perceived threat of loosing [sic] his children. It appears that despite experiencing periods of intense anxiety, he was eventually able to calm himself down and approach this challenging matter in a very intellectual manner. …
It was her view he would “benefit from ongoing psychological support to address his difficulties and to develop strategies necessary to regulate emotions effectively in the time of potential crisis”.
It may be that the behaviour of the father from August 2019 is in part explained by the father’s personality structure, as referred to by Ms G. In any event he has not continued to receive the assistance she regarded him as requiring. The father has had no mental health assistance since 2020.
The father has not read the Judgment of Justice Curran in the proceedings with Ms Vader. He regarded it as not an accurate reflection of reality, because it was incomplete. It was incomplete because he discontinued the proceedings after the first day. He is a person who has experience in reading Judgments that most litigants do not. Notwithstanding that, he has not read it. Similarly, he was critical of the Family Report. When cross-examined he indicated he skimmed over parts of the Report and had not properly read it. His evidence is he did not read the Report to manage his mental health.
I accept that he was likely upset and stressed at the time the Judgment and the Report were first available. It is concerning that he has not thoroughly read either any time since. It is troubling that he does not see the need for mental health support, yet cannot read documents which may assist him, and are part of these proceedings. These matters support a finding that he does not manage his mental health.
The father’s witnesses are not mental health professionals. A number seek to give lay evidence about his mental health, and that in their view he does not have a personality disorder. He has not been diagnosed with a personality disorder by Dr H. Ms G did not regard him as having a personality disorder. Whether or not he has a personality disorder is not the issue. The issue is the impact his mental health has on his parenting capacity.
One of his brothers was concerned enough about his mental health in 2019 to contact the police. His brother Mr CC was aware of issues that caused Ms Vader to be concerned in 2014. There is no reference to those things in the affidavit filed by his brother. It is not clear Mr CC was the same brother who contacted the police in 2019. The father does not explain that in his evidence.
The impact of stress experienced by an individual is not always obvious to friends and family. None of those on affidavit for the father refer to their knowledge of his conduct from 2019, referred to above. It may be that the father did not share those details of his life with them. It may be they chose not to refer to it in their affidavits. In either case it makes their observations about the father unreliable, because either they are not privy to his view and experience to the extent the affidavits suggest, or they chose not to refer to matters that reflect poorly on the father.
The lack of ongoing psychological support for the father is a serious concern around care for X. I accept on the evidence that when stressed or distressed the father’s behaviour deteriorates quickly. This has happened since he consulted with Ms G. Her report confirms his need for ongoing assistance, which he has not pursued.
The mother has had psychological support to deal with issues around these proceedings. There is no evidence that she has a mental health condition or disorder. The father refers to his belief she has an undiagnosed personality disorder. Absent any supporting evidence I place no weight on his lay opinion.
Can risks to X be ameliorated by orders to promote his safety?
The father has not addressed his previous erratic, unpredictable behaviour. He at times sought to justify his conduct, either from a legalistic standpoint or because of pressure he was under. There is no evidence that he has developed insight into the impact of his conduct. He has not received psychological support despite the report he relies on recommending ongoing assistance.
At the family report interviews the writer noted the father as being focused on the litigation and the mother’s actions, rather than focusing on X. This is consistent with the father’s conduct following separation, and during the hearing.
The mother is the parent X is reliant on. He needs her to be able to parent him. The father did not acknowledge the impact of his behaviour on the mother. She is responsible for meeting X’s needs. Making her frightened for herself, X and Z has adverse impacts on X. The report writer raised, “[Ms Toohey’s] mental health could be at risk in the future if she were expected to support [X] have a relationship with someone that she felt could cause harm to her and [X]”. I accept X needs her to be in good mental health. I accept her fear of the father will impact her capacity to parent X if she is required to deal with the father.
There have been orders for electronic communication between X and his father. The mother is concerned that within the confines of that time the father can be manipulative of X. It is difficult to see a benefit to X of time occurring in that manner on a long-term basis.
The father has not demonstrated an ability to put X’s needs above his own. This is clear from, for example, his legalistic approach in staying in the home, following the mother’s car, and taking X from childcare without the mother’s knowledge. He was not able to acknowledge the impact of his behaviour on X during the hearing. His lack of insight makes it unlikely that he will comply with a regime that he does not regard as fair or meeting his own needs.
X has not spent time with his father since he was about three years old. He presented to the report writer as an energetic and happy seven-year-old. He was uncertain how to describe his father. He was not negative about him. He believed that his parents were “kind of friends”. He said he would like to see his father “in the future, perhaps twice a month. … he would likely prefer someone else to be with him … and suggested his mother.” I accept that the mother has not sought to negatively influence X’s views of his father. X is at an age and stage of development where he is unable to weigh the implications of time with his father, nor could he be expected to. Little weight can be given to his views.
I accept that X is at risk of erratic behaviour from his father were he to spend supervised or unsupervised time with him. Such behaviour would put X at risk of emotional and psychological harm. He has no capacity for self-protection from that risk. He does not currently have a close relationship with his father that he would lose by orders for no time. Balancing the emotional risks to X of no relationship with his father, and a relationship with his father that exposes X to conflict and negatively impacts his mother’s capacity to parent, I accept the balance favours orders for no time with his father.
The mother and Ms Vader have cooperated around time between Y and X. This is despite the father’s submission that no time with him isolates X from his sister. It is not known how the father may manage the two women cooperating in the future, given his view that they have conspired against him. Should the father become preoccupied with this view about a conspiracy against him, it would have adverse consequences for X. It could impact on his relationship with his sister, and the time they have together.
The father has given evidence about his difficulty with authority as regards police and ambulance services. Given the father’s past conduct in these circumstances, there is a real issue about how he would cope with the directions required by supervisors for time to be successful.
Orders for supervision have not been able to be successfully implemented. Three contact supervision services refused to provide supervision. The father blames the mother for that, rather than reflecting on the role his past conduct has played in the unwillingness of services to be involved. In any event, there is no evidence of a supervised service prepared to accept the family. Absent that evidence there is no basis for ordering supervised time through a centre.
Ms DD referred in her affidavit to the father not requiring supervision with X, but that she would be prepared to act as a supervisor “to urgently facilitate re-gaining of access”. She refers to wanting to remain protected from the mother, because she has seen the abuse the mother has directed, and the pain experienced by the father and others.
In those circumstances it is not clear how she could assist with supervision. Supervised time requires the supervisor to facilitate changeovers and communicate with the mother where needed. Although supervised time is an option open to me, no party seeks it. There is no evidence that it could occur in a manner that would assist X.
I accept that time with the father would not be in X’s interests. The father’s lack of insight and engaging in family violence does not support a finding that orders for time would promote X’s safety. Additionally, the impact of any order of time on the mother, as discussed previously, mitigates against orders being made.
Should the father be restrained from approaching and contacting the mother and X?
The mother maintains that she is frightened of the father. The evidence of his behaviour, particularly around the time of separation, supports that her fear is reasonable. The fact that no particular incident has occurred recently whilst litigation is ongoing does not negate that. She was concerned about his reactions to stress and anxiety during the relationship. His behaviour after separation was overtly threatening, and at times bizarre such as around barricading the home.
The father has not sought mental health support, recommended by the expert on whom he relies. There is no evidence or submission put by him that he will do so.
I accept the observation of the report writer, as previously indicated, that “[Mr Dantes] was quite litigious in his language and his responses, with a heavy focus on the litigation history and [Ms Toohey’s] actions, rather than focusing on [X].” This conduct continued during the course of the hearing before me.
Without injunctive orders, there is a risk that the father will approach or contact the mother and X. The evidence is that he followed them in his car. He attended the offices of Ms Vader’s solicitor on three occasions, despite being aware he was not welcome. He has approached X’s preschool despite an AVO, and similarly Y’s school. He collected X from daycare without advising the mother. When there were orders for supervised time, he asked the childcare if he could take X out for lunch. I accept that it is in X’s interests for the injunctive orders to be made. The orders will promote the safety of X, in circumstances where the father has at times behaved in an erratic manner.
The mother seeks an additional order that the father be restrained from approaching Z. There is no evidence that the father has approached Z at school or otherwise. The father is not entitled to attend at Z’s school. I do not propose making the orders sought as there is no evidence that it is necessary to benefit X.
Ancillary matters
The mother seeks leave to provide a copy of the Family Report to her and/or X’s mental health practitioners. I accept that there may be benefits for X in those who treat him or his mother having an understanding of family dynamics and issues for X. I will make the order sought by the mother.
The mother seeks leave to provide a copy of the final orders to any school that X and Z may attend. Although Z is not the subject of these proceedings, it may be helpful for X that his brother’s school, as well as his own school, are aware of orders made about him. I will make that order.
The mother wants orders to enable her to travel overseas with X, including that she can apply for a passport. Arguably this is an aspect of long-term decision-making, which by agreement she holds. I propose making the orders sought because they are consistent with her exercise of parental decision-making, and may be of assistance in dealing with the Australian Passport Office and Border Force.
The father seeks that the mother be restrained by injunction from relocating overseas with X. This is another aspect of long-term decision-making for the mother. I decline to make the order.
The father seeks orders that each party notify the other of any significant medical matters relating to X. The father will not be permitted to contact the mother. He will not spend time with X nor have parental responsibility. The mother is fearful of the father. In these circumstances the order would not benefit X.
The father has sought orders restraining the parties from using physical discipline with X, speaking badly of the other parent to X or allowing another person to do so, and questioning X about the other parent’s household, family and friends. It not clear from his submissions whether there is still an order sought in this regard. To the extent that it Is necessary to deal with this, there is no evidence that the mother has ever used physical discipline with X, nor that she has spoken badly about the father to him. She will have no need to question X about the father’s life given the orders for no time. I am satisfied that she will act in X’s best interests, including shielding him from these proceedings. I decline to make the orders.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 26 May 2025
0