Trentino & Derby
[2021] FedCFamC1F 201
•17 November 2021
Federal Circuit and Family Court of Australia
(DIVISION 1)
Trentino & Derby [2021] FedCFamC1F 201
File number(s): ADC 1749 of 2016 Judgment of: MEAD J Date of judgment: 17 November 2021 Catchwords: FAMILY LAW – APPLICATION FOR RECUSAL – Complaints as to orders made – Complaints as to judge’s conduct and demeanour – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 69ZW, 91B, 102NA, 102NA(2)
Family Law Rules 2004 r 15.05
Cases cited: Johnson v Johnson [2000] HCA 48 Division: Division 1 First Instance Number of paragraphs: 286 Date of hearing: 25 October 2021 Place: Adelaide Solicitor-Advocate for the Applicant: Ms Achurch Solicitor for the Applicant: Phillips Green & Associates The Respondent: In Person Counsel for the Independent Children's Lawyer: Ms Read Solicitor for the Independent Children's Lawyer: Duncan Basheer Hannon ORDERS
ADC 1749 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TRENTINO
Applicant
AND: MS DERBY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MEAD J
DATE OF ORDER:
17 November 2021
THE COURT ORDERS THAT:
1.That the Application in a Proceeding filed herein by the mother on 27 September 2021 do stand dismissed.
2.That trial directions be adjourned to 3 December 2021 at 9.45 am by telephone.
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 Trentino & Derby has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction
On 27 September 2021 the mother, who is the respondent in the substantive proceedings before the Court, filed an Application in a Proceeding seeking orders in the following terms:
1. I seek a stay of proceedings pending the recusal of Honourable Justice Mead.
2.I seek the appointment of a new judicial officer in the matter Trentino v Derby with similar expertise in the Family Court of Australia.
3.I seek a full review of file number ADC1749/2016 to the reappointed judicial officer in this matter, of material filed to this honourable court since July 2016.
4. The reinstatement of my affidavit filed 02 May 2021.
In her affidavit filed in support of her application she deposed in paragraph 3 to:
·learning that any judge appointed to the duty and responsibility of presiding over any family court case should be an impartial and reasonable administrator of the facts and conduct themselves in a respectful manner without fear or favour;
·these foundational principles having been offended by me through bias and abuse of authority and reasonably anticipated the process;
·I am not a suitable character to preside as a judicial officer in her case as supported by my conduct; and to
·my behaviour having constituted apprehended bias.
The specific matters upon which she relied as set out in paragraphs 5 to 24 of her affidavit to support her position were that:
·on 29 September 2020 the Court dismissed her application to have the matter listed for “Rice and Asplund Principle” to be applied in the matter;
·on 23 September 2021 the Court listed the matter for trial despite new evidence of criminal proceedings;
·the father has been charged with two counts of procuring sexual intercourse by means of intimidation or blackmail, which carries a sentence of seven to fourteen years;
·proceeding with a trial before the findings of the father’s criminal matter is resolved could leave the children’s long-term care uncertain if the father is convicted and serves gaol time;
·on 9 July 2019 the Court denied the mother access to making reports to government agencies including Child Protection (Services) and South Australia Police without notifying the other party thereby placing the victim and children in extreme danger in cases involving domestic violence;
·the Court allowed the father’s affidavits to be reinstated on 27 April 2021;
·the Court prevented any further affidavit being filed in the matter directly following her filing the affidavit on 2 May 2021:
…exposing the deceptive report by Ms. B and supporting evidence (a recording of the father coaching X on what to tell Ms B, and D and F’s recordings of their session with Ms. B)…;
·on 3 May 2021 the Court ordered that neither party file any further affidavit in the matter;
·her affidavit and all supporting evidence mentioned above was permanently removed from the court record later on 3 May 2021;
·the Court accused the mother and her children D and F (the mother’s older children from a previous relationship) of criminal activity when D and F recorded their session with Ms B;
·she (the mother) was unaware the session was being recorded;
·she was reliably informed the children were well within their rights to record under the “Surveillance Act 2016, Division 1 Subsection 2”;
·it is lawful to use a listening or recording device to record a private conversation if the use of the device is reasonably necessary for the protection of the lawful interests of that person;
·the Court ignored supporting evidence that substantiated the abuse claims and the fact that Ms B’s report deliberately withheld the accounts of abuse by the father towards D and F;
·the Court made a s 91B order as well as a s 69ZW order (which order included the children D and F) seemingly as a punishment towards the mother;[1]
[1] Family Law Act 1975 (Cth).
·the Court was thereby looking for evidence of Department for Child Protection (“DCP”) involvement in her care of D and F in an attempt to discredit her position as their mother and fulltime carer, and to move the matter to the Youth Court based solely on the father’s unsubstantiated claims;
·she was denied the right to file material imperative to the children’s matter because of the injunctions against the filing of further affidavit material made on 3 May 2021 and 7 May 2021;
·that material included the report by the South Australian Ombudsman, Wayne Lines, who conducted a two year investigation into the management of the children’s disclosures by DCP, making all DCP material before the Court unreliable and misleading;
·she was told by my Associate that she would be granted an opportunity to raise both the Ombudsman’s report and the criminal matter with me but that did not happen;
·I said to the mother “with hostility” “That’s a matter for you Ms Derby” when she requested the Court to subpoena the Ombudsman’s report;
·the Court gave no consideration to the new evidence she was attempting to present;
·the Court was aware on 7 May 2021 that Ms E had undergone investigation by “AHPRA” as a result of her conduct regarding the mother’s matter;
·the Court ignored that information and asked the Independent Children's Lawyer to ascertain from Ms E her preparedness to resume therapy with the children;
·the Court was advised on 20 May 2021 that Ms E was only prepared to reengage therapy if all of the children entered the father’s fulltime care;
·that information was evidence of Ms E’s favourable bias towards the father and unwillingness to work with her;
·rather than engaging another therapist the Court denied the children therapy all together, upholding the injunctions for therapy;
·that I created a strong perception that I am not prepared to make paramount the best interests of the children and have seemingly decided the outcome of the case before the due process and having all the relevant facts by agreeing with Ms E by not granting therapy until all the children are in the father’s care;
·on 23 September 2021 the Court ordered that the mother submit to another psychological assessment despite having one conducted at her own expense with Dr G in October 2020;
·Dr H is the father’s psychiatrist;
·she considers that to be a conflict of interest;
·the Court was alternatively able to request an updated or reassessment with Dr G who is well-respected for his involvement in the Supreme Court of Australia (sic);
·I behaved dismissively to the mother by cutting her off, not allowing her to speak, or to participate in the proceedings;
·I did not give the mother a fair opportunity at all when she attempted to present material that is imperative to the Court for decision making purposes;
·I did not appear familiar with the current issues at hand creating a strong perception that I have not read and understood the history of this case which is absolutely relevant to current issues;
·I behaved intimidatingly throughout the process;
·my behaviour and incapacity directly causing the mother trauma and stress;
·it following that I am not fit for the purpose of my appointment to the mother’s case, not for the purpose of the lawful application of the Family Law Act 1975, family law principles and procedures, practice recommendation in relevant judicial and civil trial bench books, nor the principle of equity that all Australian courts should consider;
·the mother claims my behaviour was unacceptable, unreasonable and unbecoming of a judicial officer;
·this behaviour has been detrimental to the presentation of the mother’s case as it has hindered her capacity to present her case to the best of her ability, with the confidence and skills that she had previously built up prior to her appearance before me;
·this has eliminated the possibility of her participation in the continuance of her case under my administration;
·the display of intimidation directed at her throughout the process has not complied with the longstanding understood judicial consideration provided to self-representatives as provided to the self-representing father in this matter;
·the behaviour I have directed toward the mother has not been conducive to facilitating transparent and evidence-based reasoning, to support reasonable and unbiased decision making in the case;
·my behaviour has been prejudicial to the administration of justice, gravely diminished the perception of justice, been an abuse of process, offended relevant principles of equity and procedural fairness (involving apprehended and actual bias) and denied her the right to a fair hearing in consideration of natural justice;
·she believes me being the judge in this matter has become “untenable”; and
·justice should be fairly delivered in the matter.
The application was opposed both by the father and the Independent Children's Lawyer.
In order to minimise legal fees in the matter I ordered that any submissions to be made by or on behalf of the father and the Independent Children's Lawyer be provided in dot-point form only to the mother, counsel for the relevant other party and to my Associate on or before 20 October 2021.
The father’s solicitor provided brief submissions to the mother, the Independent Children's Lawyer and my Associate by email on 22 October 2021 at 1.05 pm. No written submissions were received by counsel for the Independent Children's Lawyer. She informed the Court at the hearing on 25 October 2021 that she had not done so in circumstances where she was waiting to hear any further submissions from the mother at the hearing.
At the hearing on 25 October 2021 the mother spoke to the further written submissions she had prepared and tendered to the Court at the hearing, the father’s solicitor spoke to the brief written submissions previously forwarded to the Court on 22 October 2021, and counsel for the Independent Children's Lawyer made oral submissions.
Background
First set of proceedings
The proceedings first commenced between the parties with respect to parenting issues in 2016.
Those proceedings were conducted for the most part in what was then the Federal Circuit Court of Australia in the docket of Judge Brown.
The three children the subject of the proceedings were X born in 2008, Y born in 2010 and Z born in 2012. Mr Trentino is not the biological father of X.
The father commenced parenting proceedings on 13 May 2016. He filed a Notice of Risk with his application raising the following issues:
Allegations relating to child abuse:
(1)Children do not attend school on a regular basis when in the mother’s care.
(2)The mother does not bathe the children regularly in her care and they are always dirty with unwashed hair and dirty fingernails and toenails when returned from her care. They do not brush their teeth at the mother’s home.
(3)The mother has had four different partners since separation in 2012 and she allows them to sleep over all the time to the extent that one of the children ran in to jump into bed with the mother one morning and found a man in bed with her who they did not know.
(4)The mother has Bipolar Disorder and Manic Depression and is suspected that she is either not adhering to her medications and/or is using “Ice”.
Allegations relating to other risk:
(1)The mother suffers from Bipolar Disorder and Manic Depression and was admitted to J Hospital in July/August 2015 for either drug addiction or to manage her medications.
(2)As above – the maternal grandmother advised the father that the mother was an “Ice” addict and was admitted to J Hospital for this reason. The mother denies this.
(3)The mother does not care for the children’s general hygiene properly when they are in her care and they have a poor school attendance record when in her care.
(4)The children will fall behind at school if the current regime continues and if the mother is an Ice addict, as advised by the maternal grandmother, the children are in danger of further neglect and possible abuse from dealers and/or the mother’s mental issues together with the “Ice” addiction.
When the mother filed her Response on 26 September 2016 she also filed a Notice of Risk. In that document she raised the following issues:
Allegations relating to child abuse
(1)The child Y has disclosed the father has inappropriately touched her vagina.
(2)The father smacks the children and forcibly holds them down and yells at them.
(3)The father continuously denigrates the mother in the presence of the children.
Allegations related to other risks
(1)The father has inappropriately touched the children and consumes marijuana and smacks the children.
At the first return date of the father’s application on 27 July 2016 Judge Brown ordered that the mother undergo a psychiatric assessment with respect to her mental health and file a report with the Court. He noted that the mother intended to obtain a report from her treating psychiatrist, Dr K. The report was requested to be published by 8 September 2016. It was obtained and filed by cover of affidavit on 27 September 2016.
On 16 December 2016 Judge Brown ordered that both parties attend before an independent psychiatrist for the purpose of the preparation of a psychiatric evaluation report. The reports were to be filed and served by 28 February 2017.
The father’s solicitors sought a medico-legal report from Dr H. The report was filed on 24 February 2017. The mother’s solicitor filed a further extensive report from Dr K, the mother’s treating psychiatrist, on 1 March 2017.
A family report was subsequently prepared by Ms L dated 30 March 2017.
On 1 May 2017 Judge Brown made extensive parenting orders by consent on an interim basis and transferred the matter to the Family Court of Australia. The order provided for all three children to live with the father and spend time with the mother each alternate weekend from 4.00 pm Friday to 4.00 pm Sunday and in the intervening week from 4.00 pm Friday to 4.00 pm Saturday. There was provision for further time spending with the mother as agreed between the parties such that by the long-term Christmas holidays in 2017/2018 the time would be increased to an alternate week arrangement.
The order provided for telephone communication between the children and the mother on Tuesdays and Thursdays with the father to keep a respectful distance from the children during the phone call. It also provided for specific Christmas time spending with each parent, for handovers, and for interstate holidays. Injunctive orders were made in the following terms:
6.That the parties are restrained and an injunction is granted restraining the other from:
a)Using or consuming alcohol to excess while the children are in their respective care.
b)Using or consuming illicit substances whilst the children are in their respective care.
c)Exposing the children to sex or drug paraphernalia or drug affected environments.
d)Allowing the children to come into contact with any person(s) affected by drugs.
e)Denigrating the other parent or any member of their extended family in the presence of or in the hearing range of the children.
f)From physically disciplining the children or allowing any other person to do so including the game “Bust”.
g)Changing the school enrolment of the children without the written consent of the other party.
h)From including the children in any religious activity, meeting, church activity, religious ceremony, bible studies or door to door evangelism or any other activity or service as arranged by the Jehovah Witness faith unless agreed by the parties in writing or determined by this Honourable Court.
i)From discussing all reasons of the children’s involvement or lack thereof in respect to the Jehovah Witness faith.
The order also provided for the children to continue to attend upon Ms E, a child psychologist, or any other therapeutic counsellor as recommended by her, and the parties were directed to ensure all three children attended at one general medical practice.
Paragraph 12 of the order provided that the mother ensure compliance at all times with any recommended mental health treatment and prescribed medication regime as advised to her by her GP/counsellor/psychiatrist.
The matter was first listed before a Registrar in the Family Court of Australia on 20 June 2017 when it was referred to the list of matters awaiting trial allocation.
On 16 October 2017 an affidavit was filed by the mother (apparently without leave) wherein she deposed to the relationship between she and the father having improved considerably, them being able to communicate positively for the children, to the father facilitating the children spending extra time and telephone communication with her and setting out examples of their level of cooperation.
She deposed to being in regular contact with her counsellor from Victim Support Services who had helped her become more resilient, to having been in regular contact with her general practitioner and to her mental health remaining stable. She deposed to her compliance with medication for her mental health issues as prescribed by her psychiatrist Dr K and to him being pleased with her level of mental health stability notwithstanding stressful court proceedings.
She deposed to concerns that the children were not able to participate with her and her older children in religious activities concerning their Jehovah’s Witness faith. There were no issues raised by the mother in that document as to any concerns for the safety of the children in the care of the father.
On 19 April 2018 the Court received a minute of order prepared by the Independent Children's Lawyer, accompanied by an Annexure to the Proposed Consent Parenting Order signed by the solicitor for the father on 18 April 2018. An Annexure to the Proposed Consent Parenting Order was filed in the Court on 23 April 2018 having been signed by the solicitor for the mother on 19 April 2018. On the same day an Annexure to the Proposed Consent Parenting Order was received by the Court from the Independent Children's Lawyer, that document having been signed by Ms M on 23 April 2018.
A consent order was made by the Registrar on 30 April 2018.
At the time the proceedings concluded in 2018 the children were aged nearly 10, 8 and 6 years respectively.
The 2018 order was in the following terms:
BY CONSENT IT IS ORDERED THAT:
1) That all previous Orders are hereby discharged.
2)That the parties do have equal shared parental responsibility of the children X, born on … 2008, Y born on … 2010 and Z born … 2012.
3) The Respondent Mother spend time with the children as follows:
a) During the Term 1 2018 school year:
i)From conclusion of school each Friday (or 4 PM in the event of school holiday or public holiday) until the commencement of school the following Monday (or 4 PM in the event of school holiday or public holiday)
b) From 16th April 2018 and thereafter as follows:
i)From close of school Monday (or 4 PM in the event of school holiday or public holiday) until commencement of school (or 4 PM in the event of school holiday or public holiday) the following Monday commencing 16th April 2018 and each alternate week thereafter.
ii)Where the Christmas period falls on a week that the children are not living with the father, the children spend time with the father from 4pm Christmas Eve (24th December) to 4pm Christmas Day (25th December), or as agreed between the parties in writing.
iii)Each Mother's Day from 10 AM to 4 PM provided that the children be in the father's care each Father's Day from 10 AM to 4 PM.
iv) At any other time as agreed in writing between the parties.
4)That the children be in the father’s care each year from 4 PM Good Friday until 4 PM Easter Sunday or as agreed in writing between the parties.
5) That the children live with the Father at all other times.
6)The parties do facilitate and allow the children to contact the other party via telephone whilst in their respective care at all reasonable times if requested to do so by the child/children.
7)That all handovers take place at McDonalds Suburb N or at any other place agreed to in writing between the parties.
8. That the parties ensure that whilst the children are in their respective care:
8.1.Facilitate that the children/child take any prescribed medication as directed by a medical professional
8.2.Facilitate the attendance of the child/children at any medical appointments, counselling and therapeutic appointments as directed by child/children's medical practitioner or mental health worker.
9.That the parties share equally in the costs of any medical or allied health professional appointments other than normal GP appointments.
10. That each party shall keep each other informed as to the following:
10.1.Their respective mobile telephone numbers and email address details and any changes to this information within seven (7) days.
10.2.The details of any medical or allied health care worker the children may attend upon from time to time.
11.That the parties are restrained, and injunctions are hereby granted restraining the parties from:
11.1.Abusing, denigrating or rebuking each other, respective partners, or any member(s) of their respective families in the presence of the children or permitting any other person (s) to do so:
11.2.Physically disciplining the children or allowing any other person(s) to do so:
11.3.Discussing the evidence/issues/disputes raised throughout the course of these proceedings with or in the presence of the children;
11.4.From consuming illicit drugs 24 hours prior to the children being in their care and whilst the children are in their care;
11.5.From allowing the children to attend any place of worship or participate in religious activities outside of the family home until the children individually attain the age of 13 years.
11.6.From changing the children's school enrolment without an Order of this Honourable Court or by written consent of the other party.
11.7.Changing the children's principle place of residence from the state of South Australia
12.Each of the parties do ensure that the children attend school on each school day punctually unless the child/children suffering from medical illness.
13.That the Mother's time is conditional upon her attending upon her GP and Psychologist and continue to undertake counselling at the recommendations of her Psychologist or mental health care worker and take all medication as prescribed by her GP or mental health care worker in respect to same.
14.That the parties communicate with each other by way of SMS message with all communications to be contained to issues relating to the care, welfare and development of the children only and to be at all times polite and respectful unless in the case of the parties simply providing/forwarding information in respect to the children's health or educational issues by email.
15.That each party advise the other immediate via sms/text message, should there be a medical or other emergency in respect of the children while the children are in their respective care and be able to attend the medical facility at which the children are receiving treatment.
16.That the parties be at liberty at attend all extra-curricular and school activities that parents are normally invited to attend.
17.That the parties do all things and signs all documents necessary to authorise any medical practitioner, dentist, specialist doctor, allied health professional, counsellor or therapist attended by the children to provide the other party with information and advice in regard to the children's state of health, including all details of any diagnosis and prognosis.
18.That the parties do all things and signs all documents necessary to authorise any school the children attend, to provide the other party, at their own expense and arrangement, with:
18.1.Details of all parent teacher interview dates
18.2.Copies of all the children's school reports
18.3.Details of all sporting days, school functions and any other school event parents normally attend
18.4.Any school newsletter
18.5.The children's school photographs
19.In the event that the parents are unable to resolve any major parenting issues in the future that does not relate to a breach of these Orders, the parties shall enrol in and attend a mediation or family dispute resolution services as soon as is practical, or as scheduled by such service.
20. That the appointment of the Independent Children’s Lawyer is discharged.
21.That all extant application are removed from the pending cases lists as finalised.
Second set of proceedings
On 9 April 2019 the mother filed an Initiating Application seeking that all three children live with her and spend time with the father as deemed suitable by the Family Court. On an interim basis she sought a suspension of the order of 30 April 2018 insofar as it provided for the children’s living arrangements, an order that the children live with her, and orders pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) directed to South Australia Police and the Department for Child Protection.
The mother also sought that the father undergo a random supervised urinalysis test at the request of her solicitor and that her solicitor be able to make three such requests during the period of the adjournment.
She further sought on an interim basis that the father be restrained and an injunction be granted restraining him from contacting directly or indirectly the mother or children or being within 500 metres of the children’s school or other places the children regularly attend.
In her affidavit in support filed the same day she deposed inter alia to:
·matters concerning the relationship between her older children D and F (at that time aged 14 and 13 respectively) and the father between the time of the parties’ separation in late-2012 and about early-2015; and
·D on 1 April 2019 disclosing to a mental health social worker Mr O that she had experienced abuse at the hands of the father.
In paragraph 23 of that affidavit she said:
I was told Monday afternoon after D’s counselling session with Mr O that D had disclosed an incident involving Z being touched by the respondent and that D was held down and sexually assaulted by the respondent.
She further deposed to:
·understanding that the incident occurred when D was about 9 years old;
·that D had never told her of it previously;
·her belief that Mr O had made reports to the Department for Child Protection;
·having been told that if she did not withhold the children from the father the Department would have to intervene and make application to the Youth Court of South Australia, which may result in the children being removed from the care of both of the parties;
·D and Z being interviewed by the police on Saturday 6 April 2019;
·not going into the interview with the children;
·Z allegedly putting her story into writing because she didn’t want to talk about it;
·concerns about the children being weighed by the father at the commencement of the time they were in his care;
·having become aware of that on the March long weekend;
·Z becoming upset and emotional and telling her she did not want to go to her father’s;
·the children explaining to her that the father weighed them to see who had lost or gained weight in the week they were in her care;
·Z being upset about the process;
·Z had told Ms E, the children’s counsellor, about the process;
·Z told the father in her (the mother’s) presence that Ms E had said he should not weigh the children;
·the father swore at Z in response;
·she (the mother) was seriously concerned about the children’s mental and physical wellbeing as a result of his behaviour towards Z;
·being concerned about the father undermining her relationship with the children and wanting to repair that;
·her and the father agreeing that they would both attend upon Ms E;
·hoping that she would be able to see somebody else;
·the father sending her aggressive text messages;
·her anxiety being triggered because of her past experiences of domestic violence at the hands of the father;
·being advised by her psychologist not to attend the joint session with Ms E;
·Ms E being unable to accommodate a session for her apart from the father;
·her concerns about the topics of conversation between Ms E and the children during their counselling sessions;
·Ms E spending a great deal of time going through matters with her that she considered to be very similar to matters the father had raised with her, rather than talking with the children;
·being concerned when Ms E informed her that she has spoken to the father about weighing the children in circumstances where she felt that would undermine the children’s confidence in having “safe space” with Ms E;
·the children reporting to her that the father was continuing to smoke cannabis; and
·during an evening at the father’s house in October 2017 to which he had invited her to spend more time with the children, he began to behave inappropriately and “groped” her.
With her application she filed a Notice of Risk alleging:
·sexual abuse having been perpetrated by the father on D and Z;
·the father weighing the children at the commencement and conclusion of his time with them;
·information disclosed to her by the children indicating the father continued to use drugs; and
·information disclosed to and seen by her that indicated the father’s “anger and temper have remained uncontrolled or without intervention to reduce them”.
In the father’s Response filed 16 May 2019 he sought that all previous orders be dismissed, that he have sole parental responsibility for the children, that they live with him, and spend time with the mother as ordered by the court.
He also proposed that the children be at liberty to contact the mother via telephone at all reasonable times, as well as a series of injunctive orders similar to those contained in paragraph 11 of the final order of 30 April 2018, but with the addition of an injunction restraining the parties from allowing the children to attend any place of worship or participate in religious activities outside of the family home until they individually attained the age of 13 years.
He proposed both parties be at liberty to attend at the children’s school for activities to which parents are usually invited and the mother be able to obtain at her expense copies of school reports and the like.
He further proposed that each party keep the other informed of mobile and landline telephone numbers, email addresses and a change in residential address within seven days.
Those final orders sought were mirrored in the interim orders he sought, save and except that he sought that all three children be delivered up to him forthwith, that the parties obtain psychiatric reports and that the Independent Children's Lawyer be at liberty to liaise with Ms E with respect to the children’s progress.
He did not actually seek an order for a family report but said that upon release of such a report the parties should attend for dispute resolution at the Legal Services Commission.
In his affidavit in support he deposed to:
·the mother unilaterally retaining the children in her care on 1 April 2019 following the parties attending upon dispute resolution in February 2019;
·as at the date of affirming his affidavit on 30 May 2019 having had no contact from the Department for Child Protection and having been interviewed by South Australia Police but not having been charged with any offences;
·having previously been the subject of an investigation by the Department for Child Protection in relation to allegations made by the mother that he perpetrated sexual abuse on the children, including her older children;
·not having seen the children for several months until that investigation was completed;
·the Department for Child Protection taking no further action upon completion of the investigation;
·that time being one of significant distress for both he and the children;
·family dispute resolution being instigated by him in February 2019 because he had concerns with respect to the mother’s care of the children;
·the children disclosing to him in late 2018 that the mother had forced them “to pack an emergency backpack as a result of her belief that the world would be coming to an end soon and that the children should prepare for this as best they could.”;
·the children being upset and fearful about those issues and to him having to reassure them;
·his concerns about the mother having struggled with her mental health for some time;
·being concerned about the children’s weight and having discussed that with the mother in 2018;
·having raised those issues with both the children’s GP and a specialist;
·being concerned about Z suffering from reoccurring urinary tract infections;
·to receiving advice that it would be helpful for Z to see a dietitian;
·the mother being opposed to that course and dismissing medical advice to that effect;
·that Z had become emotional upon her return to the mother on the March long weekend;
·not understanding why that had occurred but to Z immediately settling when she returned to his care;
·weighing the children in an effort to support them losing weight and to encourage them to live a healthier lifestyle;
·Z not raising concerns with him about being weighed;
·that if it upset the children he would stop doing it;
·denying swearing at the mother in the presence of the children;
·being concerned the children ate too much takeaway food whilst in the mother’s care;
·denying any allegation that he denigrated the mother to the children;
·to the contrary, the mother denigrated him to X and stated to X that she didn’t have to listen to what he asked her to do as he was not her biological father;
·agreeing that the mother raised the issue of changing the children’s counsellor;
·him declining as the Court had ordered that the children attend upon Ms E;
·the children had built a good therapeutic relationship with her;
·denying sending abusive messages to the mother;
·to the contrary, the messages were simply direct and to the point;
·denying perpetrating any domestic violence against the mother or the children;
·referring to the parties having agreed an equal time shared parenting arrangement to operate as from 16 April 2018;
·having no knowledge of when and if the mother was seeking assistance for her mental health issues;
·denying asking the mother to engage in the use of illicit drugs with him or to engaging in the use of illicit drugs himself;
·not having any contact with the children since 1 April 2019;
·not knowing where they were residing or whether they had been attending school;
·attempting to ascertain information through the children’s school;
·the school informing him they were unable to provide him with any information; and
·being advised on 13 May 2019 at 10.30 am by Detective P that South Australia Police would not be proceeding with any charges against him.
In the Notice of Risk filed with the Response he alleged:
·all three children have suffered and continue to suffer psychological abuse at the hands of the mother in the form of coaching, exposure to conflict, and ongoing undue influence by the mother on the children encouraging them to make false disclosures against the father to police in respect to alleged sexual abuse;
·that situation having been ongoing since the proceedings first commenced in 2016; and
·the mother having no insight into the long-term psychological harm her behaviour is likely to cause the children.
On 18 April 2019 an Interim Intervention Order was made in the Magistrates Court of South Australia on the application of the police. The mother and her two older children D and F, as well as the three children the subject of these proceedings, were named as the protected persons with the defendant being the father.
Paragraph 12 of the Intervention Order provided as follows:
The family court parenting order number (P)ADC1749/2016 made on 30 April 2018 is suspended in full pending a review of that order by the Family Court – order suspended until 18/7/2019.
The mother’s application of 9 April 2019 was filed directly in the Family Court of Australia.
At the first hearing before a Registrar on 30 April 2019 an order was made reappointing the Independent Children's Lawyer, and orders pursuant to s 69ZW of the Act concerning the parties and the three children X, Y and Z were made directed to the Department for Child Protection and South Australia Police.
On 11 June 2019 an order was made by the Registrar in chambers at the joint request of the parties that they have liberty to inspect and copy material produced pursuant to the s 69ZW orders subject to privilege.
On 20 June 2019 the matter came before me in circumstances where both parties were legally represented and counsel appeared for the Independent Children's Lawyer.
After hearing argument interim issues were further adjourned to 9 July 2019. The original orders providing for the mother to spend time with the children, the children’s time with the father over Easter, and the order providing for the children to live with the father at times they did not spend time with the mother were suspended during the period of the adjournment.
On that date and for reasons given ex tempore an order was made for the children to live with their father from after school that day until the commencement of school five days later on 25 June 2019 and from the conclusion of school on 28 June 2019 to the conclusion of school on 5 July 2019. The children were to live with the mother at all other times.
Orders were made with respect to the delivery by the mother of Z’s antibiotic medication to the children’s GP practice for the father to collect and administer, and provisions were made for telephone communication between the children and each of their parents.
Injunctions were granted during the period of the adjournment restraining the parties from weighing all or any of the three children until further order or from allowing anyone else to do so other than a medical practitioner, from attending at the children’s schools at times that may interfere with the collection or return of the children from and to their schools by the other of them, and from facilitating the attendance of any of the three children upon any medical practitioner or mental health practitioner other than in the case of any extreme physical necessity.
The father was ordered to facilitate the attendance of all three children upon Family Consultant L for the purposes of a brief report to only include interviews with the children, to enable them to express their views and perceptions as to their parenting arrangements.
Ms L had provided the family report during the previous incarnation of the proceedings and by this time the children were aged nearly 11, 9 and 7.
The Independent Children's Lawyer was ordered to immediately provide to Ms L copies of all applications and affidavits filed by each of the parties since 9 April 2019 together with copies of all material produced to the Court since that date by South Australia Police and the Department for Child Protection pursuant to the s 69ZW orders.
The Independent Children's Lawyer was also ordered to provide a sealed copy of the order by way of email to the Principal or Senior Teacher of The BB Primary School so that they were advised of the collection and return details for the children.
On 3 July 2019 Ms L’s report was released to the parties’ solicitors and the Independent Children's Lawyer.
The matter next came before the Court on 9 July 2019.
On that date after hearing argument and for reasons given ex tempore that day the Court ordered that the final consent orders of 30 April 2018 forthwith resume in full force and effect. In addition, it was noted that the order restraining the parties from weighing all or any of the children or from allowing any one other than a medical practitioner to do so remained in full force and effect until further order. The parties were restrained until further order from:
…making any report to any government agency, including but not limited to SAPOL and the Department for Child Protection, with respect to each and all of the children named in paragraph 1 hereof without giving not less than 48 hours’ prior written notice of their intention so to do and the nature and detail of the proposed report, other than in the case of an extreme emergency as supported by a medical practitioner.
The mother’s Initiating Application filed on 9 April 2019 was otherwise dismissed and the Amended Response filed by the father on 17 June 2019 was listed for argument as to the “Rice & Asplund” principles on 6 September 2019. Directions were made as to the filing of written submissions.
At the hearing on 6 September 2019 and for reasons delivered ex tempore that day the Court discharged paragraph 8 of the final order of 30 April 2018 which related to the children’s attendance upon medical practitioners or allied health professionals and taking medication. A more detailed order was made with respect to those issues as contained in paragraphs 2 and 3 of the order of 6 September 2019.
Paragraph 10.2 of the original final order of 30 April 2018 was also discharged. This provided that each of the parties keep the other informed as to the details of any medical or allied health care worker the children may attend upon from time to time. Those issues were redefined in paragraph 5 of the order of 6 September 2019.
The Amended Response of the father was otherwise dismissed such that the proceedings were again finalised.
At all times in the period between the filing of the mother’s application on 9 April 2019 and the orders finalising the second set of proceedings of 9 July 2019 and 6 September 2019 both parties were legally represented, as were the children.
Third set of proceedings
On 24 August 2020 the father, through his solicitors All Family Law, filed a further Initiating Application.
The father sought on a final basis that all previous orders regarding the children spending time and living with the mother be discharged, that the children live with him and that he have sole parental responsibility for the children.
He proposed that the children spend time with their mother on Tuesdays after school until 7.00 pm and on alternate Saturdays from 10.00 am to 7.00 pm. He proposed that:
·the mother urgently attend upon Dr H for psychological assessment; and
·that the mother be restrained from:
·contacting him directly other than in the case of an emergency involving the children;
·discussing the proceedings or the children’s living arrangements with the children or permitting any other person to do the same; and
·taking the children to any psychologist or medical professional except at the Emergency Department of a hospital in the case of an emergency.
The interim orders sought by him mirrored the final orders save and except that following upon the mother being assessed by Dr H a report be provided.
In the father’s affidavit in support of his application he deposed to:
·having no choice but to reopen the proceedings in circumstances where the mother had withheld Z, aged 8 years at that time, from his care;
·not having seen Z since 3 August 2020;
·previous unsubstantiated claims being made about him by the mother including allegations of control, abuse, drug use and sexual assault;
·being advised by Ms E in October 2019 that she could no longer see the children because following a report she had provided to the Court in the 2019 proceedings she “felt that she may be targeted by the mother”;
·the parties agreeing the children attend another psychology practice which declined to continue involvement when becoming aware of pending litigation;
·X disclosing to him in August 2019 that her mother had made her go and meet her biological father and being told by her mother not to tell her father;
·not being aware that he was not the biological father of X until after the parties separated;
·Z asking him in March 2020 in a random comment the meaning of the word “rape” and going on to say that D had told her that she “hopes that you fall in a hole and someone rapes you”;
·concerns about X having Spina Bifida, requiring an operation in February 2020 following which she remained in hospital for about three weeks, being permitted by the mother to ride a horse in August 2020 and falling off;
·Z being weighed by her GP in March 2019 and being 42 kilograms and in June 2020 weighing 56 kilograms;
·the mother having failed to take Z to an organised dieticians appointment;
·the mother collecting Z from school on 10 August 2020 in circumstances where orders provided for him to collect her from school that day with the other children;
·being concerned that the mother’s mental health difficulties were being triggered by the COVID-19 pandemic and that they may have an effect on the children;
·disputes between the parties about Y who had hurt her knee and required in‑patient treatment at the Q Hospital;
·the parties being in dispute about her care arrangements following her hospitalisations;
·advising the mother in June 2020 that he did not agree to the children seeing a psychologist Ms R but the mother taking the children to see her in any event;
·the mother attending at the Q Hospital for Y’s follow-up appointment for her knee injury on 17 August 2020, being asked to leave the appointment by the hospital, approaching and saying hello to X and Y and leaning over X and saying with tears in her eyes “I am sorry I cannot protect you, they are making me leave”;
·continuing to see his psychologist Mr S who he had seen for a number of years;
·completing a post-separation parenting course and a Circle of Security parenting course both in 2019, following the making of the final orders in 2018;
·returning Y and X to the mother in accordance with Court orders but not being confident she would return any of the children to his care;
·being advised by South Australia Police on 15 August 2020 that there were no outstanding allegations against him;
·his concerns that the mother was continuing to undermine the children’s relationship with him; and to
·seeking an order preventing the mother from taking the children to any psychologist or medical professional unless for a medical emergency.
On 30 August 2020 the father’s solicitor filed a Notice of Ceasing to Act.
On 24 September 2020 Peter Fisher Lawyers filed a Notice of Address for Service on behalf of the mother.
On 29 September 2020 the father’s application was listed before Registrar De Corso (as she then was). Notations were made by her at that hearing as to the Initiating Application having been filed in circumstances where one of the children was not spending time with the father as per existing court orders, and where the mother sought to have the application dismissed applying the “Rice & Asplund” principle.
Both parties were represented at that hearing.
The matter was adjourned to be heard before me on a date to be advised.
On the same day as filing her Notice of Address for Service the mother, through her solicitors Peter Fisher Lawyers, filed a Response to the Application in a Case and an affidavit in support.
In her Response filed 24 September 2020 the mother sought an extensive raft of orders, including that the father’s application be dismissed.
She sought an order that the three children attend upon psychologist Ms R for psychotherapy “to address their trauma and body image issues” and that the father be restrained from yelling, threatening and degrading Ms R or compromising the children’s therapy in any way.
She proposed that the father’s time with Z be increased at the discretion of the therapist and that all recommendations made by the therapist be followed by the father.
She further proposed that until such time as Ms R believed that Z was ready to recommence time with her father pursuant to the orders of 30 April 2018, Z should live with her and spend time with the father as requested by Z, that X be permitted to make decisions regarding what time she spent with the father in circumstances where she is not his biological child, and further that she be permitted to freely pursue a relationship with her natural father, Mr CC.
The mother proposed that all handovers of Y occur at school in accordance with the orders of 30 April 2018 and sought certain specific orders in relation to notification of appointments for the children, who may attend at the appointments, arrangements for collection of the children early from school and that both parties be restrained from discussing court proceedings with the children.
She sought that the children be permitted to telephone the other parent when outside of their care and that the parties be restrained from making cruel and derogatory remarks in relation to each other and the children’s siblings D and F in front of the children.
The interim orders sought by the mother were in the same terms as the final orders.
In the mother’s affidavit filed in support of her Response she deposed, inter alia, to:
·X telling her that the father threatened to take her and Z’s mobile telephones and “smash it in the shed” if they continued to contact her during their time with him;
·X and Y having attended every court ordered visit with the father;
·the father treated the family dog violently in front of the children in 2019 with the children reporting he had thrown the dog when a puppy against a brick wall and also chained him to the back fence and deprived him of food and water;
·trying to arrange psychological therapy for the children under the Medicare scheme to help them cope with their distress;
·the father refusing all of her suggestions and not permitting the therapy;
·the children being denied access to therapy, the mother therefore having no professional account of the decline in their psychological wellbeing and being concerned they haven’t been allowed the opportunity to develop coping strategies to help them spend time with their father;
·Z not always attending time with the father because of struggling with the arrangement such that she now refuses to spend time with the father;
·being unsure of how to achieve progress as she is unable to access therapeutic support for Z;
·Z often expressing strong refusal to attend with her father particularly after:
·seeing an entry that Z allegedly made in her diary with words to the effect of “he said that if I didn’t ask him to call mum he would smash my phone in the shed”; and
·Z disclosing to her that the father treats her differently from X and Y, often discusses the disclosures of a sexual nature she made in 2019 and calls her a “liar”;
·Z being distressed during a visit with the father on Father’s Day when he allegedly told her he was going to remove her from her mother’s care in the court process;
·the father telling Z he would sell her pet rabbit if she didn’t start seeing him;
·having difficulty getting Z out of the car to go to school on Mondays when she is due to go with her father;
·to a diary entry made 11 August 2020 wherein Z said she didn’t want to see her father because of being yelled at when she put the wrong ingredients in scones, when he told her that if she didn’t ask him if she could call her mother he would smash her phone in the shed, that he smokes green stuff at night and hurts the family dog;
·Z refusing to go with the father on Mondays when the children are due to go into his care;
·the father continually denying the children permission to attend upon a psychologist for therapeutic support which if done earlier may have prevented Z from reaching her current situation; and
·the father continuing to assert that she has psychological health issues impacting her ability to parent and care for the children and using that fact in an attempt to undermine her.
In paragraphs 25 to 28 of her affidavit she deposed to alleged breaches of the orders of 6 September 2019 by the father.
The mother further deposed in her affidavit to:
·denying that she has withheld Z but that Z refuses to see her father despite her encouragement for that course;
·the father spending time with Z when he was invited to attend medical appointments on 21 August 2020, 1 September 2020 and on Father’s Day 6 September 2020;
·denying that she ever unilaterally decided to withhold the children but doing so under the stipulation of the Intervention Orders in 2017 and 2019;
·the father constantly reminding X that he is her father, making her feel guilty for seeking a relationship with her natural father;
·X not being at any risk of injury when falling from her horse on 8 August 2020;
·Y having a major accident whilst in the care of the father requiring surgery and a hospital stay at the Q Hospital on 27 July 2020;
·the father failing to attend all scheduled appointments with the dietitian;
·the father raising the backpack issue in a previous affidavit in 2019 and to her mental health being stable, fully functional and well;
·having obtained an extensive psychological evaluation from a forensic psychologist to alleviate the father’s concern as to the state of her mental health;
·advising the father of details regarding psychologist R, to him not responding, to Ms R being ideally matched for the children because of extensive knowledge in eating disorders and trauma and to her being affordable;
·offering to cover all costs associated for the therapy with Ms R;
·her having the children attend upon Ms R on 4 August 2020 in circumstances where she understood the father consented;
·any reduced time that X, Y and Z spend with her will significantly impact on their already limited time with their siblings D and F;
·such a course would not be in their best interests;
·it is not necessary for her to undergo an evaluation with Dr H having just completed a psychological and personality evaluation;
·Z not wanting to spend overnight time with the father and that needing to be addressed; and
·the dietician advising that the children have specialised therapy to address the psychological issues and provide therapies to control their weight and to the children’s general practitioner approving and recommending the therapies practiced by Ms R for that purpose including the specialised treatment she provides for anxiety and eating habits/obesity.
Paragraphs 51 to 57 inclusive were in response to the father’s allegations regarding arguments between the parties concerning Y’s care following upon her fall.
On 26 October 2020 when the matter first came before me I made an order reappointing the same Independent Children's Lawyer who had represented the children in the earlier proceedings, and made an order that during the period of the adjournment the Independent Children's Lawyer attempt to ascertain from Ms E her position as to the children attending upon her for therapy. In her report of 1 July 2019 Family Consultant L had recommended that the children continue to engage in therapeutic intervention with Ms E.
The matter was adjourned to 25 November 2020.
On that date the matter was further adjourned to 7 December 2020 with the Independent Children's Lawyer to confer with the parties’ solicitors during the period of the adjournment as to the identity of a family therapist prepared to work with the family particularly with respect to the child Z. Family Dispute Resolution was ordered to occur at the Legal Services Commission on 22 January 2021.
Both parties were legally represented at the hearing on 29 September 2020 before the Registrar and before me on each of 26 October 2020 and 25 November 2020.
On 1 December 2020 the father filed an Application in a Case seeking that Z be delivered up to him by the mother on 7 December 2020 and that failure by the mother to comply with that order should result in a Recovery Order issuing for Z. He also sought all three children live with him from 12noon on 7 December 2020 until the commencement of school on Wednesday 27 January 2021.
He further sought that all orders for the children to live with or spend time with the mother be suspended during the period of the adjournment and that during that time the children spend time with their mother each Saturday and Tuesday from 10.00 am until 7.00 pm commencing Saturday 12 December 2020, and on Christmas Day from 2.00 pm until 7.00 pm. He also sought an order restraining the mother from attending at or within 50 metres of the children’s school for the remainder of the 2020 school year.
The father’s affidavit in support of that application comprised some 43 paragraphs, the first 26 of same referring to matters to which he had already deposed and the remainder detailing the times that the mother had refused to deliver Z into his care or facilitate such occurring between the filing of his last affidavit on 24 September 2020 and 30 November 2020. He deposed to:
·X and Y continuing to live with each parent week-about;
·X expressing a desire to stay with him and not return to the mother;
·Y saying the same thing;
·him having told both children they need to continue the arrangements that are in place;
·X and Y complaining of favouritism expressed by the mother to Z at their expense; and
·not wanting to attempt further handovers at school with Z because of fears that would result in the mother stopping Z attending at school.
On 2 December 2020 the father also filed a Contravention Application.
The mother filed an Application in a Case on 3 December 2020. She sought orders that Z live with her, that a report be prepared by Ms R and be provided to the parties and the current agreed therapist, that Z not spend time with the father until a direction from the agreed child psychologist to allow for such time to recommence, and for reunification therapy to be arranged if supported by the child psychologist.
In the mother’s affidavit in support she deposed to:
·Z suffering from undiagnosed mental health issues and refusing to be in the father’s care;
·using her best efforts to present Z for handovers and to help Z go with her father;
·the father actively choosing not to collect Z from school when he had the opportunity to do so;
·making every effort to provide multiple options for psychological therapy for the children and being hopeful that a psychologist appointed pursuant to orders made on 25 November 2020 would assist Z;
·being concerned that if the agreed therapist was not able to provide individual therapy for Z she was concerned Z’s fear would continue to escalate and that she was aware Ms R was readily available to help Z;
·Z refusing to go with her father from school on several occasions when that time was due pursuant to existing orders;
·various diary notes made by Z on various dates including one to her teacher indicating she didn’t want to come to school because of being scared her father would pick her up;
·the father actively choosing to leave Z at school even on days when he could collect her and to Z attempting some daytime time with her father on four occasions; and
·numerous diary entries by Z with respect to her unhappy at spending time with or seeing her father and to Z now being adamant that she did not want to spend time with her father at all despite her mother’s encouragement and attempts to support that relationship.
On 7 December 2020 both parties and the Independent Children's Lawyer were again all represented by counsel. The father’s Application in a Case filed on 1 December 2020 and that of the mother filed on 2 December 2020 were listed for argument on the papers on 15 January 2021.
Orders were made for the filing of responding documents, Contravention Applications were adjourned to that same date for mention, and with the consent of both parties an order was made for the children to attend upon Ms B for the purpose of family therapy with the parties to attend upon Ms B as required by her. An order as to payment for that service was also made.
I ordered that neither party nor the Independent Children's Lawyer request a report from Ms B without further order of the Court and further, that both parties ensure the children in their respective care could attend at school on each day of that week for the full school day.
In addition I made an order that the Independent Children's Lawyer attend at the children’s school at her earliest convenience to speak to all three children to better acquaint herself with the children and inform them of the role of the Independent Children's Lawyer.
The parties were restrained until further order from facilitating or permitting the attendance of X, Y or Z upon any medical practitioner or allied health professional with respect to psychological treatment or therapy.
The solicitors for the father filed a Notice of Ceasing to Act for him on 17 December 2020.
On 14 January 2021 the father filed a Notice of Address for Service on his own behalf.
On 15 January 2021 the matter was further adjourned to 19 January 2021 to enable the Independent Children's Lawyer to make urgent enquiries as to the identity of a possible therapist who has experience in family law disputes, court processes and accepts mental health care plans. This was in circumstances where Ms B, the therapist referred to in the order of 7 December 2020, had informed the Independent Children's Lawyer that she did not accept referrals under mental health care plans and her hourly rate was $275.
On 19 January 2021 the Court ordered that the father pay any costs associated with the attendance of the children or any of them as well as himself upon Ms B and that he be personally responsible for the costs of two attendances by the mother as may be requested by Ms B. It was noted in that order that Ms B had indicated she no longer undertakes family therapy pursuant to mental health care plans. The order provided that the father and the mother and the children attend upon Ms B for no more than six appointments in total.
Upon the completion of those six appointments, the Independent Children's Lawyer was ordered to obtain a report from Ms B as to the content and progress of the sessions, together with any recommendations for future progress, and thereafter arrange for further family dispute resolution at the Legal Services Commission.
Directions with respect to all outstanding matters were adjourned to 3 May 2021.
At hearings on 15 January 2021 and 19 January 2021 the father appeared on his own behalf with the mother continuing to appear through Counsel, as did the Independent Children's Lawyer.
A Notice of Address for Service on behalf of the father was filed by Westside Lawyers on 26 February 2021. On 9 April 2021 the father filed a further Notice of Address for Service on his own behalf.
Notwithstanding that on 19 January 2021 directions generally with respect to all outstanding issues were adjourned to 3 May 2021, the matter came back before the Court on 27 April 2021.
On that occasion the father appeared on his own behalf with the mother and the Independent Children's Lawyer both represented by Counsel.
On each of 13 and 17 April 2021 the father had filed further affidavits without the leave of the Court.
On 15 April 2021 the mother had, through her solicitors, filed an Application in a Case seeking a Recovery Order with respect to the children X and Y together with an affidavit in support of same, as well as a Contravention Application and an affidavit in support.
In her affidavit in support of her Application in a Case she deposed to:
·the father having withheld X and Y from her care since Sunday 4 April 2021;
·making numerous enquiries of the father as to the whereabouts of the children without reply;
·requesting the police to do a welfare check on the children;
·being informed that the police had sighted the children;
·that the father’s reason for not returning the children was that they didn’t want to go to the mother’s home;
·the father actively making false allegations to South Australia Police and the Child Abuse Report Line with respect to her mental health;
·issues about the father taking the children to their GP without notifying her on multiple occasions and to changing X’s treatment and specialist from the Q Hospital to a private podiatrist;
·the father unilaterally arranging for the school counsellor to speak with X and Y;
·the children being in desperate need of psychological assistance;
·the father being recorded on 18 January 2021 instructing X to speak negatively about her mother and siblings to a court-appointed therapist;
·the children being fearful of the father and saying anything that he tells them to say;
·X telling her the last time she saw her after being at the father’s home that there were court papers all over every table in the father’s house such that they couldn’t even sit at the table as well as her father needing to get a life because he was obsessed;
·X telling her the father had said he was going to offer Z to her (the mother) on a fulltime basis in exchange for X and Y living with him on a fulltime basis and to wanting to “trade them”;
·a change in the attitude of X and Y towards her in the last month or so, in particular as to their level of attachment to her;
·hearing the father making sarcastic comments about Z, D and F when Y had her phone on speaker on one occasion;
·the father preventing the children from telephoning her when staying with him;
·both X and Y doing well at school but Y often arriving late at school;
·Z refusing a video conference with her father as suggested by Ms B;
·the children not being at any risk of harm, neglect or abduction from or by her;
·the father raising concerns simply to attempt to cease the children’s time with her;
·the children never expressing to her that they are unhappy in her care or do not want time with her;
·X having expressed on occasions that she doesn’t want to return to the father’s care;
·allegations made against her by the father with respect to her drug use; and that
·Z is a healthy child although frequently criticised and body-shamed by the father.
The affidavit in support of the Contravention Application related to the alleged breaches.
Both applications were made returnable for 27 April 2021.
By email correspondence to each of the parties and the Independent Children's Lawyer from my Chambers on 20 April 2021 the hearing date of 27 April 2021 at 9.30 am was advised, as well as the fact that the affidavits the father attempted to file on each of 13 and 17 April 2021 appeared to have been voided by the Adelaide Registry on administrative grounds, but that they would be regarded as before me for the hearing on 27 April 2021. The parties were both advised that they were not permitted to file any further documents prior to the hearing.
The parties and the Independent Children's Lawyer however were advised by my Chambers that if the Independent Children's Lawyer was in a position to either file prior to or tender at the hearing any brief report she may be able to obtain from Ms B as to her involvement with the family to date pursuant to existing orders the Court would be pleased.
On 22 April 2021 the Independent Children's Lawyer filed an affidavit advising that following upon service on her of the parties’ Applications in a Case she had contacted the Senior Family Court Liaison Officer from the Department for Child Protection (“the Department”), Ms U, seeking urgent information regarding the children. She annexed a short report from the Department advising as follows:
·the Department did not currently have an open case in relation to the family;
·multiple investigations had been completed by the Department, South Australia Police and Child Protection Service – no abuse had been substantiated in any of the investigations;
·South Australia Police closed the matters without charge or convictions;
·there was no consistency in the accounts of allegations;
·it appeared the children may have been coached around their disclosures;
·in August 2020 the Department received a further report regarding allegations of sexual abuse of the children by the father;
·Child Protection Service determined there was no role for them given the allegations were historical in nature and were previously investigated;
·South Australia Police undertook an interview of Z – no disclosures were made – South Australia Police closed the matter;
·the Department spoke with agencies and professionals working with the family – no concerns were raised for the welfare of the children;
·concerns were raised that the pattern of child protection notifications appeared to align with family law proceedings;
·the Department determined that any further interviewing of the children or investigation may exacerbate this; and
·the Department closed the involvement with no concerns being substantiated and no evidence of abuse or neglect pertaining to the mother or father.
She further deposed to her efforts to obtain a report from Ms B who was on annual leave and to being concerned that all three children were now deeply entrenched in their parents’ dispute.
The affidavit filed by the father on 13 April 2021 deposed inter alia to both X and Y not wanting to return to the care of the mother and to concerns as to the state of the mother’s mental health and the impact of her behaviour on the children.
The affidavit he attempted to file on 17 April 2021 was essentially in the same terms.
The father appeared on his own behalf at the hearing on 27 April 2021 with the mother and the Independent Children's Lawyer both represented by counsel.
The mother’s counsel advised the Court on 27 April 2021 that during the period of an adjournment X and Y would not be removed from their school by the mother. An order was made reinstating the affidavits filed by the father on each of 13 and 17 April 2021. Extant interim applications and Contravention Applications were adjourned generally to 30 April 2021 at 9.15 am. The matter was further administratively adjourned to 3 May 2021 to await the report of Ms B.
On 3 May 2021 the father appeared on his own behalf, the mother was represented by her solicitor and the Independent Children's Lawyer by counsel. The matter was adjourned to 7 May 2021 for argument on the papers. Orders were made that during the period of the adjournment neither party file any further affidavit material, and that the mother be restrained from removing X and Y from their school for any purpose whatsoever. Telephone communication was ordered between the children and the mother to occur at 5.00 pm on each of Tuesday 4 May and Thursday 6 May 2021.
The Court further ordered that on or before 12noon on Thursday 6 May 2021 the Independent Children's Lawyer advise the parties by way of email communication of the preliminary position to be adopted by the Independent Children's Lawyer with respect to interim issues at the hearing on 7 May 2021.
After hearing argument on 7 May 2021 and for the reasons given ex tempore on that day the Court ordered as follows:
THE COURT ORDERS THAT:
1.During the period of the adjournment all existing parenting orders be suspended.
2. During the period of the adjournment:
a.X born in 2008 and Y born in 2010 live with the father; and
b.Z born in 2012 live with the mother.
3.That pursuant to section 91B of the Family Law Act 1975 the Chief Executive Officer for the Department for Child Protection be invited to intervene in these proceedings and to send a representative to the Court on the next occasion being 20 May 2021 at 9:30am.
4.Pursuant to section 69ZW of the Family Law Act 1975 the South Australian Police Department shall provide the Court with the following documents or information with a request that such information be provided on an urgent basis:
a.copies of any notifications regarding abuse allegations arising relating to the children:
- X born in 2008;
- Y born in 2010;
- Z born in 2012;
- D born in 2004;
-F born in 2005,
and the parties:
- MR TRENTINO born … 1980; and
- MS DERBY born … 1983;
b. any details of investigations into such abuse allegations;
c. the outcome or findings of any such investigations; and
d.copies of any reports received by the South Australian Police Department in the course of investigating any such notifications,
NOTING THAT the Department provided section 69ZW material in respect of the aforementioned children X, Y and Z and the parties MR TRENTINO and MS DERBY on 29 May 2019 and the Court does not require copies of that material to be re-sent.
5.Pursuant to section 69ZW of the Family Law Act 1975 the Department for Child Protection shall provide the Court with the following documents or information with a request that such information be provided on an urgent basis:
a.copies of any notifications regarding abuse allegations arising relating to the children:
- X born … 2008,
- Y born … 2010;
- Z born … 2012;
- D born … 2004; and
-F born … 2005;
b. any details of investigations into such abuse allegations;
c. the outcome or findings of any such investigations; and
d.copies of any reports received by the Department for Child Protection in the course of investigating any such notifications,
NOTING THAT the Department provided section 69ZW material in respect of the aforementioned children X, Y and Z on 29 May 2019 and the Court does not require copies of that material to be re-sent.
6.That further interim issues be adjourned to 20 May 2021 at 9:30am to enable the Independent Children’s Lawyer to ascertain from Ms E both her ability and her preparedness to resume therapy for X, Y and Z and if she is so able to advise the Court of a possible urgent commencement date NOTING the Court is aware that the mother reported Ms E to ‘AHPRA’ and does not consider that she is unsuitable to conduct therapy.
7.During the period of the adjournment neither party file and serve any further affidavit material.
The order included an adjournment to 20 May 2021 to enable the Independent Children's Lawyer to make certain enquiries.
On 10 May 2021 the mother filed a Notice of Address for Service in her own name.
On 19 May 2021 Ms V, solicitor of the Public Law Section of the Crown Solicitor’s Office forwarded to the Court, to the mother’s by then previous solicitor and the Independent Children's Lawyer correspondence wherein the Department for Child Protection formally requested an adjournment of four to six weeks to conduct an investigation and assessment into the matter and consider the Court’s request to intervene in the proceedings as contained in the order of 7 May 2021.
The correspondence referred to the significant child protection history for the family dating back to 2013, with previous departmental involvement. It referred to reported concerns having pertained to allegations of sexual abuse perpetrated by the father and that departmental records indicated South Australia Police and Child Protective Services had previous involvement, but there had been no abuse substantiated and no charges or convictions.
I am not satisfied that the listing of the trial indicates any level of prejudgment in the matter or any bias on the part of the Court against the mother.
I find this complaint on the part of the mother does not support her application that I be recused from further involvement in the proceedings.
Third ground
On 9 July 2019 I made an order in the following terms:
2.That until further order the parties be restrained and injunctions are hereby granted restraining each of them from making any report to any government agency, including but not limited to SAPOL and Department for Child Protection, with respect to each and all of the children named in paragraph 1 hereof without giving not less than 48 hours prior written notice of their intention so to do and the nature and detail of the proposed report, other than in the case of an extreme emergency as supported by a medical practitioner.
That order was made during the second set of the proceedings that were on foot between 9 April 2019 and 6 September 2019.
When finalising that set of proceedings I did not address the terms of that order or its interim nature.
Both the Application and Response in that round of proceedings were dismissed.
It is the mother’s position that the making of such order placed her and the children in extreme danger.
This is a matter which has been characterised by significant and continued allegations of domestic violence and sexual abuse by the mother against the father, which have been investigated at length both by the Department for Child Protection and South Australia Police.
At the time of the making of that order there was no evidence that the allegations were being acted upon either by the Department for Child Protection or South Australia Police, and nor has such evidence been put before the Court since that time.
The order applied equally to both parties.
It was intended that the children be protected to the extent of the parties being able to make such reports if they were made in the case of an emergency supported by a medical practitioner.
The order was made over two years ago.
Neither party has sought leave to appeal the order or made application to have the order set aside.
I am not satisfied that the terms of that order are indicative of prejudgment, prejudice or bias against the mother or her case. I am not satisfied that it is a matter which supports her application for recusal.
Fourth ground
The mother further complains that on 27 April 2021 I permitted affidavits the father had attempted to file on each of 13 and 17 April 2021 to be reinstated in circumstances where they had been rejected for filing by the Registry apparently because there had been no leave to file same.
On 15 April 2021 the mother through her solicitors filed both a Contravention Application and an Application in a Case seeking a Recovery Order with respect to the children X and Y. By that time those children were apparently in the father’s fulltime care and not spending time with the mother in compliance with the order of 30 April 2018. The application was listed as a matter of urgency on 27 April 2021.
I deemed it appropriate to make an order reinstating the affidavits of the father in circumstances where they were directly pertinent to the Application in a Case filed by the mother as well as the Contravention Application she had filed. The father was representing himself and that course avoided an adjournment of the proceedings to allow the father to file responding documents.
On 27 April 2021 all extant interim applications and the Contravention Application were adjourned generally to 30 April 2021 at 9.15 am.
That hearing was administratively adjourned to 3 May 2021 in circumstances where the parties were advised that a report the Independent Children's Lawyer was to obtain from Ms B would not be available prior to 30 April 2021 as anticipated. That report was filed by the Independent Children's Lawyer by way of covering affidavit on 30 April 2021.
By email to my Associate on 28 April 2021 at 2.40 pm the father, who was a self‑represented litigant at that time, forwarded to my Chambers, and to the mother’s then solicitors and the Independent Children's Lawyer, a copy of an affidavit he had filed on the portal in response to an affidavit that the mother had filed on 14 April 2021.
He was advised by email from my Chambers on 28 April 2021 at 2.55 pm that no leave had been granted to file any further affidavit material prior to the hearing that was then listed on 30 April 2021, and in those circumstances the affidavit would be removed from the court file. Mr Trentino responded by email on 28 April 2021 at 3.18 pm that he accepted the removal of the document from the file.
At the hearing on 3 May 2021 argument on the interim issues was adjourned to 7 May 2021 and an order was made that during the period of the adjournment neither party file any further affidavit material.
At 10.45 am on 3 May 2021 correspondence was forwarded by email from my Chambers to the solicitors for the mother, the father in person and the Independent Children's Lawyer. They were advised that it had come to the attention of Chambers after the hearing earlier that morning that an affidavit had been filed on behalf of the mother, and in circumstances where the father’s affidavit had previously been uplifted due to having been filed without the leave of the Court, the affidavit filed by the mother on 3 May 2021 as well as a further affidavit that she had filed on 2 May 2021 were uplifted from the Court file.
I have already referred to the reason as to why the father’s previously uplifted affidavits were returned to the Court file on 27 April 2021.
At that time r 15.05 of the Family Law Rules 2004 applied. That rule is in the following terms:
A party may file an affidavit without the leave of the court only if a provision of the Rules or an order of the court allows the affidavit to be filed in that way.
No leave had been granted either to Mr Trentino with respect to his affidavits initially filed on each of 13 and 17 April 2021, or to Ms Derby in respect of her affidavits filed on 2 and 3 May 2021.
The matter has been listed for trial. The mother is at liberty to include any relevant admissible evidence that she sees fit in her trial affidavits. This evidence is then able to be tested at trial and findings can be made by the Court. The Rules of Court are designed to ensure that parties do not file, at an interim level, a plethora of affidavits containing material that is contested and in respect of which the Court is not in a position to make findings at an interim level.
Again, I am not satisfied that the mother’s complaint in regard to that issue illustrates any basis upon which it is appropriate that I recuse myself from hearing the trial in this matter.
Fifth ground
The mother was further concerned that the order made on 7 May 2021 inviting the Chief Executive Officer for the Department for Child Protection to intervene in the proceedings was a means of “punishment toward me, D and F” and an attempt to discredit the mother and move the matter to the Youth Court.
The Court is faced with both parties making serious allegations as to the parenting capacity of the other of them. The family has had long-term involvement with the child protection agencies and South Australia Police. In those circumstances it was appropriate for the invitation to be extended to the Department for Child Protection.
The purpose of the order was to ensure that as much relevant information as is available concerning the parties and the children that may assist in determining any ongoing parenting disputes is properly before the Court. Such an order gives the Department charged with the protection of children the opportunity to participate in the proceedings. In the alternative, as frequently happens, it can simply provide such material as it is able to assist the Court in arriving at a result that is in the best interests of the children, notwithstanding that it declines the invitation to participate in the proceedings.
This is a matter where litigation commenced in 2016. The children are now the subject of the third set of proceedings. They are children of a vulnerable age. Their parenting arrangements no longer follow existing orders but have been altered through the actions of their parents.
Considerable concern has been expressed in material already before the Court from both the Department for Child Protection and South Australia Police as to the actions taken by both parents from time to time and the impact of those actions.
Again, this is not an issue which I am satisfied supports the mother’s position that I should recuse myself from hearing this trial.
Sixth ground
The mother also expressed concern that as a result of the parties being unable to file material “imperative” to the parenting issues (because of the specific orders preventing the parties from filing further affidavits),[3] she was unable to put material before the Court from the Ombudsman regarding his inquiry into the handling of the matter by the Department for Child Protection.
[3] Mother’s affidavit filed 27 September 2021, paragraph 13.
Ms Derby went on to say in paragraph 13 of her affidavit:
When I requested you to subpoena the Ombudsman's report, and in an attempt to raise this with you, you said with hostility, ‘That's a matter for you Ms Derby’.
It was her position that I gave no consideration to the new evidence she was attempting to present.
It is for the mother to present her case to the Court at trial.
Findings of disputed fact are rarely possible at an interim hearing unless those facts are agreed or oral evidence is taken.
The Ombudsman’s inquiry is a matter the mother may wish to raise at trial.
The Court is unable to give the mother advice. For the duration of these proceedings until the hearing on 7 May 2021 the mother was represented by solicitors and on most hearings by counsel. She advised the Court in answer to a question from me at the hearing on 25 October 2021 that she was seeking further legal assistance.
I am not satisfied that any orders I have made have restricted the mother putting material before the Court that is of assistance in the decision making process at the level of interim hearings.
The orders preventing the parties from filing affidavit material have only been made in circumstances where both parties have on occasion not properly understood the limitations on the Court being able to effectively make use of contested evidence prior to a hearing where it can be tested.
The family law rules make clear the position with respect to the filing of affidavits but they are frequently either misunderstood or ignored, not only by self-represented litigants but by their legal representatives.
Again, I am not satisfied that the mother’s complaint in this regard supports the order she seeks with respect to recusal.
Seventh ground
The mother further submits in paragraph 15 of her affidavit filed 27 September 2021 that I am not prepared to make paramount the best interests of the children, and have seemingly decided the outcome of the case before the due process and having all the relevant facts by agreeing with Ms E by not granting therapy until all of the children are in the father’s care.
The order that is in place with respect to therapy for the children is order 8 of the orders made 7 December 2020 which is in the following terms:
Until further order the parties be restrained and injunctions are hereby granted restraining each of them from facilitating or permitting the attendance of X, Y or Z or any of them upon any medical practitioner or allied health professional with respect to psychological treatment or therapy.
The children had continued therapy with Ms E following upon the order of 30 April 2018.
The evidence before the Court at the time of the final order was that they had enjoyed and benefitted from that therapy, as reported by Ms L in paragraph 66 of her family report dated 1 July 2019.
The evidence before the Court as at 7 December 2020 was that the mother had been unhappy with Ms E and in fact had forwarded a complaint to “AHPRA” as a result of her conduct.
The Court was concerned as to the emotional impact on the children of the interruption to their therapy with Ms E, with whom it appeared they had a good and secure relationship.
It was obvious the parties were not agreed as to who should conduct therapy if not Ms E, and on what basis the therapy should be conducted.
Serious allegations were being made by the mother, denied by the father, and seemingly not the subject of any ongoing investigation by either the Department for Child Protection or South Australia Police.
It is important that therapy for children is not conducted against a backdrop that may lead to an escalation of the dispute between the parties and result in the children the subject of litigation being embroiled in their parents’ dispute to an even greater degree. The purpose of them receiving therapeutic assistance is to help them cope with the circumstances in which they find themselves.
The children in this matter are still young. Their minds are developing and they are susceptible to influence from adults in all walks of their life. It is extremely important when children who are the subject of litigation embark on therapy that there is a clear understanding by the therapist of the basis upon which the therapy is to be conducted, and the purpose of the therapy. Not surprisingly, this is often a very difficult position on which to settle when parties are in high conflict such as in these proceedings.
It is often necessary for the Court to consider what course of therapeutic action if necessary will be best for the children. This may only be able to be ascertained after the parties’ evidence is tested. Such testing appropriately occurs at the time of trial.
In these proceedings serious allegations have been made by the mother against the father with respect to drug use, sexual abuse and domestic violence, and by the father in respect of the mother’s history of mental health concerns. These are all issues that go to the parenting capacity of the parties.
Therapy for children that is conducted on a premise that is not sound will almost inevitably result in psychological harm to the child or children. The order was made in circumstances where the Court considered that a cessation of therapy, (where it could not continue as a result of the actions taken by the mother) to be provided by the therapist with whom the children had built rapport, was preferable to the children or any of them commencing attendance upon a new therapist. Without any criticism of him or her, this therapist would not have the necessary background knowledge of the complexity in this case.
I am not satisfied that the making of such an order is indicative of any prejudging, prejudice or bias towards the mother either personally or in the presentation of her case.
Eighth ground
In paragraph 16 of her affidavit filed 27 September 2021 the mother deposed to me ordering that she submit to another psychological assessment in circumstances where she had of her own volition and at her own expense been assessed by a well-respected clinical psychologist, Dr G, in October 2020. The report of that assessment had been annexed to an affidavit of the mother filed on 24 September 2020 and was dated 23 September 2020.
The cover page of that report was not numbered, and what appeared to be the last page was numbered 15. The other pages filed were numbered 3, 5, 7, 9, 11 and 13 respectively.
It was stated on the cover page that the report was for the attention of:
Ms W
Barrister & Solicitor
BB Street
Adelaide, SA, 5000
Under the heading “Assessment Summary” on the cover page the following appeared:
Assessment Date: 11th September 2020
Intellectual Ability: ‘Average’ (90<IQ<110) range of intelligence
Personality Profile: Emotionally stable
Clinical Profile: Not significantly elevated symptoms
Substance Abuse Problems: None active
Gambling Problems: Not an Issue
Medical Condition: Not significant
Behavioural Problems: None identified
DSM-5 Diagnostic Summary No diagnosis
Rehabilitation Recommendations: No Treatment recommended
The mother’s solicitors on file in these proceedings at that time were Peter Fisher Lawyers.
The report had not been obtained by the mother as a result of any order in these proceedings and unfortunately, in the absence of any pages numbered 1 and/or 2 there was nothing to indicate the purpose of the report.
In paragraph 43 of the mother’s affidavit filed 24 September 2020 she said “I alleviate the applicant’s concern for my mental health” before going on to refer to the report of Dr G.
In paragraphs 13 to 15 of these reasons I set out the orders made by Judge Brown in the first set of proceedings requiring both parties to obtain psychiatric reports.
The two reports filed by the mother in that set of proceedings were both prepared by her then psychiatrist, Dr K.
The order for psychiatric report made on 23 September 2021 related to both parties.
At the time the order was made both parties were unrepresented.
The order to obtain the reports was directed to the Independent Children's Lawyer in circumstances where the parties were unrepresented, the trial is listed for 7 February 2022, and the parties’ mental health is an issue in these proceedings.
The order was made at the Court’s own instigation. The order provides for the Independent Children's Lawyer to provide to Dr H relevant material filed by each of the parties prior to his assessment.
Dr H is a psychiatrist who regularly provides medico-legal reports to the Court and gives evidence as to a broad range of factors that may be relevant to the state of the mental health of parties involved in litigation.
Although he previously provided a psychiatric assessment in respect of the father in the first set of proceedings that concluded by way of final order on 30 April 2018, he has not attended upon the father in a treating capacity at any time.
It is often helpful to the Court, where parties do not have treating psychiatrists and mental health is in issue, for the same expert to provide the medico-legal reports where he/she has been provided with copies of the evidence relied on by the parties to illustrate the parties’ concerns each of the other.
In circumstances where the mother has a history involving psychiatric care at times, it is more appropriate for the mental health assessment to be conducted by a psychiatrist rather than a psychologist. In addition, the Court is unaware of the level of knowledge of Dr G with regard to the background of this matter. No orders have been made enabling any filed documents to be provided to him.
In addition to the order for psychiatric report the Court noted the requirements of s 102NA(2) of the Act.
The order of 23 September 2021 does not prevent the mother calling appropriate evidence from Dr G at trial.
Again, I am not satisfied that the mother’s complaint is sufficient to sustain an application for recusal.
Conclusion
It is the mother’s concern that she has not been given a fair opportunity to participate in these proceedings particularly when attempting to present material to the Court that she considers imperative for decision making purposes.
The orders that have been made to date in the third set of these proceedings have been either what might be regarded as “holding orders” or orders for the preparation of trial.
The consent orders of 30 April 2018 have not been relevant to the reality of Z’s living arrangements since August 2020 and X and Y’s living arrangements since approximately April 2021.
The parties are in high conflict.
The allegations are serious and the conduct of the parties is concerning to the extent of its impact on the children’s psychological wellbeing.
The conflict has already resulted in Z having very little contact with or communication with her father and X and Y having little communication with or contact with their mother. In addition, the children’s current living arrangements results in them being separated for significant periods of time.
The Court has not made any interim findings or prevented either of the parties from filing material that can be useful at an interim stage of the proceedings.
The mother was legally represented from the time the father reinstituted proceedings on 24 August 2020 up to and including the hearing on 7 May 2021. She advised the Court at the hearing on 25 October 2021 that she was seeking legal representation pursuant to the s 102NA(2) notation to which I have referred.
The application that I recuse myself from these proceedings has been made by the mother at a time when she has been representing herself. There is no doubt that she is dissatisfied with the various orders to which I have referred and with my conduct of the matter generally.
This is a very complex matter.
I have had the conduct of these proceedings since June 2019. They are listed for final hearing before me on 7 February 2022, some four and a half months after the mother filed the recusal application.
If I were to recuse myself from hearing this matter there would inevitably be delay in it coming to trial. This would delay a detailed examination of the evidence of each of the parties to enable the parenting arrangements for the children to be determined as soon as possible.
I am not satisfied that any of the substantive complaints made by the mother, which I have considered individually in these reasons, support her position that I have, through my actions and decisions, prejudged this matter or exhibited prejudice or bias towards her such that “a fair‑minded lay observer might reasonably apprehend” that I “might not bring an impartial and unprejudiced mind to the resolution” of the parenting dispute between the mother, Ms Derby and the father, Mr Trentino.[4]
[4] Johnson & Johnson at [11].
The costs in this matter have been significant, whether in circumstances where the parties have paid privately or where funding has been provided by way of legal aid or alternatively by way of s 102NA funding provided by the Commonwealth.
I have set out in detail the extensive raft of concerns expressed by the mother in her affidavit, together with the history of this matter generally, in circumstances where I am aware that the mother’s position is now made more difficult by virtue of currently being self-represented. It is perhaps understandable that some of her concerns, such as me not being familiar with the issues at hand, have created a strong perception in her mind that I have not read and understood the history of her case which she considers is absolutely relevant to current issues.[5]
[5] Mother’s affidavit filed 27 September 2021, paragraph 18.
For these reasons I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and eighty-six (286) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead. Associate:
Dated: 17 November 2021
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