Tyrell & Tyrell - [2022] FedCFamC2F 1214

Federal Circuit and Family Court of Australia
(DIVISION 2)
Tyrell & Tyrell [2022] FedCFamC2F 1214

File number(s): CAC 103 of 2020

Judgment of: JUDGE W J NEVILLE

Date of judgment: 14 September 2022

Catchwords: FAMILY LAW – Parenting and property applications – 25 year long marriage – where alleged incident involving the police occurred in December 2019 and Mother has not seen the children since – Father’s evidence was shambolic and not credible – evidence that children have clearly been informed about the litigation, despite Orders prohibiting this – reports of the Father’s inappropriate behaviour towards and around the children – concerning shortcomings in the Father’s parenting – allegations against the Mother not substantiated – Mother’s evidence was more measured and credible – parenting Orders made as proposed by the ICL and supported by the Mother for the youngest child to live with the Mother – but for the ages of the older children, the Court would likely Order them to change residence as well – substantial property pool containing marital home and joint bank account – marital home was owned by the second respondent Grandmother however has been in the Father’s name since 2015 due to a false statutory declaration – funds from joint bank account withdrawn right before proceedings commenced - Father and Grandmother claim the property is only in the Husband’s name fraudulently and not part of the property pool – finding that funds were removed for the purpose of ensuring they could not be reached by the Mother - the Grandmother and Father cannot benefit from their own wrong according to the maxim ex turpi causa non oritur action – finding the real property and funds are both assets or in the alternative financial resources for the purposes of the property pool –weight given to the Father for initial and ongoing financial contribution - Orders made for a 45/55 property division in the Husband’s favour - where potential breach of expert witness guidelines – where potential contempt and breach of s121 – Jones v Dunkel inferences.

Legislation:
Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) Family Law Act 1975 (Cth), ss. 60CA, 60CC(3)(a) – (m), 65DAA, 75(2), 79(2) & (4), 106B, 121

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 6.1

Cases cited:
AMS v AIF (1999) 199 CLR 160

Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387

Black & Kellner (1992) 15 Fam LR 343

Bondelmonte v Bondelmonte (2017) 259 CLR 662

Byrnes v Kendle (2011) 243 CLR 253

Chang v Su (2002) 170 FLR 244; (2002) 29 Fam LR 406

Chapman v Chapman (2015) 51 Fam LR 176

Collu & Rinaldo [2010] FamCAFC 53

Dickons v Dickons (2014) 50 Fam LR 244

Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1

Fox v Percy (2003) 214 CLR 118

Godfrey & Saunders (2007) 208 FLR 287

Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422

Grundt v Great Boulder Proprietary Gold Mines Ltd (1938) 59 CLR 641

Hall v Hall (2016) 257 CLR 490

Hsiao v Fazarri (2020) 94 ALJR 961; (2020) 383 ALR 446; (2020) 61 Fam LR 465

Jones v Dunkel (1959) 101 CLR 298

In the Marriage of Kress (1976) 13 ALR 309

M v S (2008) 37 Fam LR 32

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) 41 Fam LR 483

Moose & Moose (2008) FLC 93-375

AJO v GRO (2005) 33 Fam LR 134

Orr v Ford (1989) 167 CLR 316

Partington v Cade (No.2) (2009) 42 Fam LR 401

In the Marriage of Pierce (1998) 24 Fam LR 377

In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230

Valder & Saklani (2014) 251 CLR 505

Sigley v Evor (2011) 44 Fam LR 439

Stanford v Stanford (2012) 247 CLR 108

U v U (2002) 211 CLR 238

Vontek & Vontek [2017] FamCAFC 28

White and Tulloch v White (1995) 19 Fam LR 696

Yango Pastoral Company Pty Ltd v First Chicago Australia Limited (1978) 139 CLR 410

K.R Handley, Estoppel by Conduct and Election, (Second Edition) (London: Sweet & Maxwell, 2016)

Division: Division 2 Family Law

Number of paragraphs: 327

Date of last submission/s: 28 July 2022

Date of hearing: 21 – 22 April 2022; 13 May 2022

Place: Canberra

Counsel for the Applicant Mr R Thomas

Solicitor for the Applicant Falcon Legal Canberra

Counsel for the First Respondent Ms R Curran

Solicitor for the First Respondent Farrar Gesini Dunn

Solicitor for the Second Respondent Fitzgerald Naylor Lawyers

Solicitor/Advocate as the Independent Children’s Lawyer Mary Burgess
ORDERS

CAC 103 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

TYRELL & TYRELL

BETWEEN:
MR TYRELL
Applicant

MS TYRELL
First Respondent

MS B TYRELL
Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE W J NEVILLE

DATE OF ORDER:

14 September 2022

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
Parenting
1.The Father have sole parental responsibility for the children, X, born in 2006 (‘X’) and Y born in 2006 (‘Y’); save that the Father is restrained from changing Y’s school.
2.X and Y live with the Father.
3.The Father shall provide all relevant information about X and Y to the Mother at the beginning of each term by letter or email. Such information shall include any significant information about X and Y’s health, education, extra-curricular activities and a schedule of their appointments with their psychologist.
4.The Mother have sole parental responsibility for the child, Z (‘Z’) born in 2010.
5.Z live with the Mother.
6.The Mother shall provide all relevant information about Z to the Father at the beginning of each term by letter or email. Such information shall include any significant information about Z’s health, education, extra-curricular activities and a schedule of his appointments with his psychologist.
7.Z shall spend time with the Father as follows:
(a)for a period of 4 months, the Father and paternal Grandmother be restrained from making any contact with Z, whether at the Mother’s residence, the child’s school, any sporting venue or extra-curricular activity;
(b)thereafter Z shall spend time with the Father supervised at C Contact Centre for such times as are able to be facilitated by that organisation for a minimum of 6 months, desirably every second weekend. X and Y are to be invited to spend time with Z at C Contact Centre as well;
(c)Thereafter for a further period of 2 months, Z shall spend time with the Father unsupervised each second Saturday from 10am to 5pm with changeovers to occur at C Contact Centre;
(d)Thereafter Z shall spend time with the Father from 3pm Friday until 9am Monday (extending to 9am Tuesday if Monday is a public holiday) each second weekend and for the first half of each school holiday period.

8.Further to Order 7a above, the Father is to use his best endeavours to restrain Y and X from contacting Z by any means (including in person) in the initial 4 months from the date of these Orders.
9.The children X and Y shall be at liberty to spend time with the Mother whenever they wish to do so.
10.The children X and Y are at liberty to message or call their Mother if they choose to do so.
11.The Father is to ensure the children have contact details for the Mother as soon as he receives such information from the Mother.
12.The parties each notify the other of any significant medical emergency involving the children as soon as possible by email or text message.
13.Each of the children’s schools is authorised by these Orders to provide copies of the children’s semester school reports; newsletters; school photo order forms to both parents. The other parent is restrained from preventing the school from providing such information.
14.The parties keep each other advised of any change in their address, contact telephone number and contact email.
15.The parties are restrained from involving Ms D as the children’s counsellor, or having any contact with her.
16.The parties are to appoint an independent psychologist as the therapist for all the children. That psychologist will be given information from each parent prior to commencing counselling with any of the children. Such information shall include the reports of Ms E and Ms H.
17.The parties are restrained from the use of any physical discipline on any of the children.
18.The parents shall do all things necessary to enrol in the C Contact service (C Contact Centre) and ensure they are on the waiting list within 21 days of the date of these Orders.
19.The Mother is at liberty to send gifts, cards, and letters to X and Y, and the Father is required to give any such items to the children.
20.The Father is at liberty to send gifts, cards, and letters to Z, and the Mother is required to give any such items to Z.
21.The parties are restrained from discussing the proceedings with the children and from providing, or allowing anyone else to provide, a copy of the judgment to the children.

Property
22.The net equity of the parties in their property (inclusive of the D Street property and funds in the “joint bank account”) be divided as to 55% to the Husband and 45% to the Wife and the following Orders be made to give effect to that outcome.
23.Within 60 days of the date of these Orders, the Husband pay to the Wife the sum of $823,770.
24.In the event the Husband fails to comply with Order 23:
(a)The Husband shall vacate the property at D Street, Suburb E, (the ‘D Street, Suburb E property’);
(b)The Wife be appointed trustee for sale for the D Street, Suburb E property;
(c)The Wife shall, pursuant to such trusteeship, cause the D Street, Suburb E Property to be sold; and
(d)The Wife shall cause the net proceeds of sale of the D Street, Suburb E Property to be applied to pay to her the amount she is entitled to pursuant to Order 23, and the balance to the Husband.

25.Except as otherwise provided, each party retain, to the exclusion of the other, all other items of property in their names, possession and control.

Costs
26.Within 21 days of the date of these Orders, the parties are to file and serve written submissions of no more than 3 pages in length in relation to costs.
27.Within 7 days of the date of these Orders, the parties are to confirm by email that the issue of costs may be dealt with in Chambers on the basis of these reasons and the written submissions.
28.In relation to the Mr F Tender Bundle, the Mother’s costs are to be paid jointly by the Father and his lawyer either as agreed or taxed.

Procedural
29.Immediately following the judgment delivery, it is requested the Court Child Experts and the Independent Children’s lawyer are to explain the Orders to the children. The ICL is authorised to provide the children only with a copy of the parenting Orders.
30.After the Orders have been explained to the children pursuant to Order 29, the Father is to depart the Court immediately with Y and X.
31.The Mother is to depart the Court thereafter with Z.
32.Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
33.Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
34.All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.

AND THE COURT NOTES THAT:
A.It is requested the Independent Children’s Lawyer arrange with the Father’s lawyer for the most appropriate arrangements for the delivery to the Mother of Z’s personal items;
B.It is requested the Independent Children’s Lawyer remain in the matter for 6 months following the date of these Orders and until the children have each met with a new psychologist. It is requested that the Independent Childrens Lawyer explain to Z that she is an independent person he can talk to and he can contact if needed;
C.It is requested that a Registrar of the Federal Circuit and Family Court of Australia provide this judgment to the relevant psychologist Registration Board in relation to the conduct of Ms D;
D.It is requested that a Registrar of the Federal Circuit and Family Court of Australia forward this judgment to the ACT Law Society in relation to the conduct of the Father’s solicitor, Ms Wearne;
E.The Wishes Reports by Ms G dated 11^th February 2020 and 31^st August 2020 provided via Affidavit filed 16^th March 2021 be admitted as Exhibit 1; and
F.The Mother’s second Tender Bundle, dated 27^th May 2022 be admitted as Exhibit 5.

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 a pseudonym Tyrell & Tyrell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

There are not insignificant difficulties, indeed some delicate and troubling dilemmas, with both the parenting and property aspects of this matter. The experienced Independent Children’s Lawyer (“the ICL”) remarked in the course of the hearing that the concerning dilemma for the Court in relation to parenting Orders was to choose between “the least worst option” for the children.[1]
[1] See Transcript, 13^th May 2022, p.253. Hereafter, all references will be “T” followed by the page number. The trial was conducted over 3 days, 21^st and 22^nd April and 13^th May 2022.
There are three children of the 25 year marriage of the parties: 16 year old twins X and Y, and 11½ year old Z. The Applicant Father is aged 55 years, and the Mother is 46 years old. Since an incident at the family home in December 2019, the children have all lived solely with the Father and have spent no time with the Mother. A chronology of events, dated 18^th April 2022 and prepared by the ICL, canvasses these events in more detail. This document is Annexure A to these reasons. Both parties, the Father in particular, have limitations of various kinds; some of the limitations are quite significant. Details are set out later in these reasons.
From the most recent Report, prepared by psychologist Ms H (dated April 2022; Exhibit MSP1) in relation to possible family therapy, she said (emphasis added):[2]
This is a really challenging situation with two stories that are so opposed in regards to who the perpetrator is that it is hard to make sense of. It is difficult to believe that things have been as bad as both paint the relationship for so long and that they sustained over 25 years together. They both speak of their faith with the Jehovah’s Witness fellowship, but there are many inconsistencies with both reporting being removed from their community and the children not having a great deal of knowledge of the faith. I know that traditionally, Witnesses do not celebrate birthdays or Christmas and yet there was talk of [Ms Tyrell] not sending cards or presents as a sign of parental love. [Mr Tyrell] appears to be close with the elders of that community so I am unsure of why he has been removed. The family does appear to have lost some of the community around them.
It appears that after over two years of isolation, the children have been completely alienated from their mother and there are enormous feelings of fear in each of the children to open themselves up to any possibility of any contact, even when they were offered any type of writing, phone or digital means of contact but it is a little uncertain what is actually causing this fearful reaction.
I am concerned about [Mr Tyrell’s] overly positive and grandiose descriptions of how amazing his children are and how helpful he is as a parent. He appears to have little ability to reflect on any negatives in his own behaviour and how his relationship came to such a conflictual end.
[2] At pp.10 & 11 of this Report.
Many of the matters briefly noted here by Ms H are canvassed at length later in these reasons.
Summarised, the Father’s position in relation to the children was basically to leave them to decide for themselves about spending time with their Mother but in circumstances where they were and remain essentially alienated from her.
Also summarised, the Mother’s primary position was that the children should all live with her, being the only guarantee (in a manner of speaking) by which she could spend time with them or at least to begin doing so. In the alternative, the Mother said that, if the Court was against her regarding her primary position at least in relation to the older children, she would seek (and as the ICL proposed) that the younger child, Z, live with, and/or spend time with, her. The hope in this regard is that Z might become, over time, something of a bridge between the Mother and the older children.
For the reasons that follow, and again noting how utterly fraught any Orders are in the circumstances of the matter, and the Court’s extremely grave concerns about the Father’s extraordinary range of incapacities (personal and all else), in my view, the ICL’s proposed Orders are in the children’s best interests.
Regarding property, summarised, the issues were: (a) the long marital relationship between the parties (25 years or thereabouts); (b) for the entirety of the relationship, the parties lived in a residence (“D Street, Suburb E” or “the D Street, Suburb E property”); the paternal Grandmother lived [and lives] two doors down from this property, which passed to the paternal Grandmother upon the death of her Husband, the paternal Grandfather; (c) the Husband regularly represented to the Wife, and to multiple third parties, that he owned the property in which he and the Wife lived; and (d) neither party earned much, if any, income during the relationship and both were given access to a joint account, which was in the name of the Husband and the paternal Grandmother, from which they drew funds regularly, without limit, for daily and other expenses. The funds in this account came from the Grandmother.
Immediately upon separation, the Wife’s access to the just mentioned “joint account” was removed. It was contended that she was trying to remove all of the $500,000 funds in it; she said that she was trying to remove only $50,000. I believe and prefer the Wife’s evidence in this regard for reasons given later.
There is essentially irrefutable evidence of the Husband signing multiple documents in relation to financial matters, mostly without either reading, and certainly not understanding, them, which were either misleading or fraudulent – or both. As he said many times in his evidence: “paperwork” is not a strong suit of his, and pretty much anything that was put in front of him by anyone he signed, whether he understood the document and its import or not. Invariably, he did not comprehend its import at all. His reading and comprehension capacities were low; indeed, his comprehension was dangerously poor, as the evidence below highlights. For example, he was quite untroubled by his lack of comprehension regarding documents that related to seeking finance for a car, and in relation to changing names on documents of title to land, to name only a couple of rather important issues in which he acknowledged in the course of his oral evidence that the information he gave to relevant bodies was patently wrong or similarly false.

The Husband and his aged Mother argued strenuously that the marital residence (and the funds in the “joint account”) should be excluded from the property pool as an asset of the parties. Curiously perhaps, they studiously avoided addressing directly the Wife’s contentions that (a) the Husband repeatedly, and often publicly, represented (and recorded in various documents) that the marital residence was owned by him, (b) the parties lived in the same residence for the duration of their long marriage, and (c) even when on formal notice from her then solicitors about changing the name on the title of the marital residence from the Husband’s to her own name as long ago as 2014 and 2015, the paternal Grandmother did not do so. She did nothing to rectify the title deed to the D Street, Suburb E property for at least the last 8 years, and she was aware that the Husband regularly represented to third parties that he was the owner of this property.
For the reasons that follow, either as an asset in its own right, or alternatively as a “financial resource”, the D Street, Suburb E property must be included in the considerations of the Court under s.75(2)(b), which refers to “the income, property and financial resources of each of the parties ….”[3]
[3] See also the wide description given to “financial resource” by the Full Court in White and Tulloch v White (1995) 19 Fam LR 696 at 701-702.
Further, the conduct of the paternal Grandmother, and the Husband in particular, in relation to the D Street, Suburb E property over such a long period of time precludes them, on the basis of principles of estoppel set out below, from now asserting (as they do) that the Wife has no claim at all on that property in any relevant respect. In all of the circumstances of the matter here, not least being the 25 years of largely uninterrupted residence at the property, and the contributions to the family (detailed later), it would be unjust and inequitable for the Husband’s (and paternal Grandmother’s) argument in this regard to succeed against the Wife.
In effect, the Husband’s argument, and rather likewise for the paternal Grandmother, was that (a) the primary asset/financial resource(s) should be excluded from the pool and removed from any possible access by the Wife, and (b) apart from begetting, delivering, raising and home schooling the children, and for the most part, being a supportive Wife to the Husband (who had little, and has little, resources of his own in any relevant respect), the Wife should get almost nothing for her contributions and all else as a result of the 25 years of marriage. The Husband’s and paternal Grandmother’s arguments against the Wife, regrettably, were astonishingly niggardly and utterly scurvy-like. Put another way, on the Husband’s argument (supported by his Mother), there were few bones or scraps that could or should be left for, or made available to, the Mother and Wife from the reasonably, and comfortably, well-adorned table of the Grandmother from which the Father and Husband, throughout his life, has always supped without limit.
The calculated parsimony of the Husband and his Mother was especially clear in their respective attempts to put any and all assets (or financial resources) beyond the reach of the Mother. Added to this conduct, full, Mr Tyrell and ongoing financial (and other) disclosure (which included copies of the Grandmother’s most recent Will, which excluded the Husband as a beneficiary, and which had been prepared by her then lawyer who now formally acts for the Husband) was a regular failure on behalf of the Husband, in particular, and his lawyers.
Again to speak somewhat generally but set out in detail below, (a) although there were some issues with it, I accept and prefer the evidence of the Wife to that of the Husband (in particular) and that of the paternal Grandmother, and (b) there should be an adjustment in the Wife’s favour, but not quite to the degree that she seeks. Again in general terms, that adjustment should be 45% in the Wife’s favour and 55% in the Husband’s. The primary reason for this adjustment is because of the overwhelming financial contributions that favoured the Husband that came via his Mother over a long period of time. This was also in circumstances where the Husband and Wife were both almost entirely dependent upon financial support throughout their long marriage from the paternal Grandmother. The Grandmother was essentially the parties’ banker.
All of this said, the adjustment would likely have been somewhat higher on the Husband’s side in the light of the substantial and ongoing financial contributions, not by, but on behalf of, the Husband by his Mother, the Second Respondent Grandmother. The reason why it is not as high as it might have been arises from the conduct of the Husband and his Mother, particularly in their significant failure to disclose relevant documents, which include the Grandmother’s testamentary material. This was made more egregious because (a) the Husband’s current lawyer acted for the Grandmother regarding said testamentary documentation but did not disclose or provide this material until after the final hearing concluded, (b) similarly, multiple requests by the Wife’s solicitors seeking disclosure, as set out in the Wife’s Affidavit filed 14^th September 2021, and (c) the still undisclosed whereabouts, use of, and access to, the funds removed by the Husband (or the Grandmother) from the “joint account” in late December 2019. According to authority discussed later in these reasons, for example by the Full Court in Chang v Su at [69] and [70] (internal citations to other authorities omitted; emphasis added):[4]
… However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion.’
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
[4] Chang v Su (2002) 170 FLR 244.
The Father and his Mother have been less than forthcoming in relation to important documentation and financial information generally. The Father’s lawyer also has aided the “obfuscation and evasion” by not providing documents that she plainly had in her possession because she acted for the Grandmother when preparing (and witnessing) her Will in December 2019, and a Codicil in December 2020.
Orders were made after the Final Hearing on 13^th May 2022 directing the Father’s lawyer to provide all documents in her possession and control received from the Grandmother’s former lawyers. Those lawyers ceased acting for the Grandmother in 2015. I need not detail the various correspondence and the like that followed these Orders except to note that from the large number of documents produced, the following matters are clear – but only became so after the hearing, which also confirms that information directly relevant to the financial position of the Husband, and in turn the paternal Grandmother, was not disclosed until after the hearing pursuant to Orders made by the Court on 13^th May 2022:[5]
(a)By letter dated 7^th April 2014, the Grandmother’s then lawyers confirmed that it was the view of the Husband’s bankruptcy trustee that the Change of Name form regarding the D Street, Suburb E property was fraudulent, and that in providing a sworn declaration as he did, the Husband committed a criminal offence;
(b)By letter dated 2^nd April 2014, the same lawyers confirmed that, at that time, (i) the Grandmother was not aware that Mr Tyrell had transferred the D Street, Suburb E property into his own name; (ii) Mr Tyrell’s illegal conduct regarding the transfer of title to this property exposed him to one or more criminal charges; (iii) Mr Tyrell is recorded as having urged his Mother to provide evidence of his criminal misfeasance; and (iv) the Grandmother gave instructions not to expose Mr Tyrell to possible criminal prosecution;
(c)By letters dated 7^th April 2014 and 11^th August 2015, the Grandmother’s then solicitor advised and sought instructions for the D Street, Suburb E property to be transferred into her name. Those instructions were never provided.
[5] The correspondence referred to here is part of the Mother’s second Tender Bundle, dated 27^th May 2022. It is formally tendered and assigned the Exhibit number, 5.
This correspondence (and other documentation set out later in these reasons) makes plain that from April 2014, the Grandmother, and the Applicant Husband, were both aware that the D Street, Suburb E property was registered in the latter’s name, and that this had occurred by his fraudulent conduct (also set out in detail below). This fraud, and the circumstances by which it occurred, nor the correspondence just referred to, was recorded in any material filed by either the Husband or his Mother. This is also in circumstances where the Grandmother’s former solicitor, now the Husband’s solicitor, had this documentation in her possession since approximately September 2021. It was not disclosed until May 2022. It was not disclosed in any of the Affidavits filed by the Husband or his Mother. Further still, the information set out in the 2014 and 2015 letters from the Grandmother’s former lawyer makes the Husband’s generalised evidence regarding the D Street, Suburb E property, and his bankruptcy, in his Affidavit dated 14^th September 2021, especially at pars.24 – 30, 31 – 36, and 62 – 73, inaccurate, erroneous and misleading. How and when, if at all, the Husband’s lawyer checked on the accuracy of her client’s material, particularly once the former solicitor’s records became available in September 2021, was never explained. In my view, “obfuscation and evasion” were writ large in the material provided, and even more so in the material not disclosed, by the Applicant Husband and his Mother.
The “obfuscation and evasion”, if not worse, was also plainly evident in the parenting side of things. Indeed, it was compounded by the Father’s lawyer urgently arranging interviews for the children with an external expert, only three weeks after the incident that led to the Mother no longer living in the former marital residence after 25 years or so, and before these proceedings had even been filed. The comments made by the children about the Mother strongly indicate that they had been coached and provided with information that could only have come from the Father. No less troubling is that the Mother was never told of this action to arrange interviews with the children with a family consultant. The interviews took place not only without the Mother’s knowledge but also without any input from her.
As is plain later in these reasons, I took a very dim view of the Father’s evidence. He was an astonishingly poor witness. However, what is more than a little curious bordering on the disturbing is that among the recently disclosed material there is SMS correspondence between the Husband and his lawyer. As relatively brief as it is, there are few if any spelling mistakes but rather “slick” engagement, and easy familiarity with his engagements with the Bank. This is in stark contrast to his fumbling and bumbling evidence during the trial about his dealings with the Bank. As noted later, the Father also gave evidence that but for the incident in December 2019, the family would likely have stayed together and carried on with their lives because they all were “good actors.” When coupled with the recent “smooth” if not “slick” and easy correspondence between the Father and his lawyer, the Father’s evidence at the hearing may have to be assessed as somewhat more of an act to ensure that the Wife (and Mother) was deliberately removed from his life, from the lives of the children, and that she had no access to any of the “family assets.”[6] Put another way, he was perhaps not (and is not) quite as bumbling and fumbling and uncomprehending as he often made himself out to be at the hearing. Certainly his Affidavit evidence was less than precise, especially in the light of the post-hearing disclosed material from 2014 and 2015. Moreover, in his Affidavit material, he even indicated that he knew about the D Street, Suburb E property being in his name as long ago as 2010. However, as somebody like a more modern “artful dodger”, he could be very “flexible” in his evidence. For example, sometimes he contended that this property was in fact his (when seeking funds), but at other times he argued strongly that it was not his property (e.g. for the purposes of his bankruptcy). But either way, as something of the acting schemer (or the scheming actor), or the bumbling and fumbling Husband and Father, his evidence and that of the Grandmother (certainly the “brains behind the outfit” so to speak), were clearly calculated to “obfuscate and evade”, and to make the access of the Mother to both the children, and to any assets, as difficult and troublesome as possible.
[6] It was noted in the Mother’s evidence that the Father actively encouraged her relationship, which ultimately became (relevantly according to the tenets of the Jehovah’s Witness tradition) “adulterous.” Once a relationship was so declared, this meant that the Mother could be (and was) “disfellowshipped”, and she was counselled by that Church to have nothing further to do with her children. It could, and likely should, be inferred that there was a concerted effort and process to ostracise and shame the Mother, at least in relation to access to the children, but who would then be left in the Father’s sole care at the former marital residence.
Finally, the Grandmother’s declaration sought in the current proceeding regarding the D Street, Suburb E property is the first action she has taken since April 2014 when she was advised by her then lawyer to transfer the property into her name, following the fraudulent conduct of her son in putting it in his name. It is too late in the day, not to say too “convenient” to argue now in this case, that such a declaration should be made regarding the property. Certainly in this respect, the Wife’s argument, among a number of alternatives, for the doctrine of laches to apply is well founded.
The Grandmother well knew, because she was formally advised by her then solicitor, of her son’s (the Husband’s) various defaults, including fraudulent conduct, as long ago as 2014. At that time, she was also advised to rectify the title deeds to D Street, Suburb E. She did not do so, or take any action at all to initiate such action. For the last 8 years, in effect and in reality, she has engaged in “calculated inaction” regarding the title to that property. “Calculated inaction” is the terminology of Gummow and Hayne JJ in Byrnes v Kendle at [79] and the cases there cited by their Honours.[7] In the light of the Husband’s various representations, regularly in writing, that he was the owner of said property, which the Grandmother admitted she knew about, she cannot now disavow the effective representation to the Mother, as the Husband stated, that this property “belonged” to the married couple. Until this litigation, the representations of the Husband regarding this property were never disavowed by the Grandmother. At the very least, her conduct indicated “acquiescence” in the representations of her son. Her conduct, in turn, represented to all, including the Wife, that the Husband’s representations were accepted by the Grandmother or not opposed by her.[8] Indeed, although not provided to this Court, her specific instructions to her then solicitor was to take no action that could potentially expose her son to any possible criminal action for his fraudulent conduct regarding the title deeds to D Street, Suburb E.
[7] Byrnes v Kendle (2011) 243 CLR 253.
[8] See further the extended discussion by Heydon and Crennan JJ in Byrnes v Kendle, at [133] – [139] by reference to the detailed earlier discussion by Deane J in Orr v Ford (1989) 167 CLR 316 of the various and often overlapping circumstances that give rise to, and the distinctions between, “acquiescence”, “estoppel by conduct”, “election to abandon or not enforce rights”, “laches” and “gross laches.” Although not spelt out, and notwithstanding no reference to these High Court authorities, in my view, the factual circumstances plainly on display here are readily captured by these terms and the discussion by Heydon and Crennan JJ in Byrnes v Kendle. The submissions of the Wife, set out later, do refer to laches but without reference to authority.
Further, just as the Husband cannot rely upon his fraudulent and misleading conduct to defeat the Wife’s claims regarding entitlement to certain property to be included in the asset pool, likewise, the Grandmother cannot similarly rely upon the fraudulent and misleading conduct of her son to lead to her benefit, by defeating the Wife’s claims.
Applicant’s Orders sought
The Applicant Father’s Orders sought were contained in a Case Outline Document, filed 19^th April 2022. They were as follows (emphasis in original):
CHILDREN
1.That all previous orders are discharged.
PARENTAL RESPONSIBILITY
2.That the father have sole parental responsibility for the children, [X] born [in] 2006, [Y] born [in] 2006 and Z born [in] 2010; (“Children”).
3.The parties keep each other advised of any change in their contact telephone number and contact email.
LIVES WITH
4.That the Children shall reside with the father.
CONTACT
5.That there be no face-to-face contact between the mother and children unless recommended by the child’s treating psychologist.
6.That the children are at liberty to message or call their mother if they choose to do so.
7.That if the children request it of the mother, she may send them presents or cards.
MEDICAL
8.The father will notify the mother of any significant medical emergency involving the children as soon as possible by email or text message.
SCHOOL
9.That the father shall authorise the school to provide copies of the children’s semester school reports; newsletters; school photo order forms and will cease all other communications with the mother.
10.The mother be restrained by injunction from attending the children’s school, off-campus school subjects or events or any extracurricular activities the children might attend from time to times unless otherwise recommended by the child’s treating psychologist.
RESTRAINT/NON-DENIGRATION
11.That each parent shall refrain from making critical or derogatory remarks about the other party and or members of that family in the presence of, or within the hearing of the Children (including via social media) and all parties shall do all things reasonably necessary to ensure that no other person, including members of the parties respective Churches, makes any critical or derogatory remarks about the other parties and or members of that parties family in the presence or within the hearing of the Children.
12.That each parent is restrained by injunction from discussing these proceedings, the parties past relationship and the circumstances of the parties separation, with the Children or in the presence or hearing of the Children and on all forms of social media including posting information about the Children on social media and or allowing third parties to do so
13.That neither parent shall allow any of the children to view any materials forming part of these proceedings.
PROPERTY
1.It be declared that the Applicant [Mr Tyrell] holds the property known as [D Street, Suburb E] in the state of New South Wales, Folio Identifier … on trust for the 2^nd Respondent, [Ms B Tyrell], subject to his equitable interest in the property.
2.It be declared that the extent of Applicant’s equitable interest in the property be 20%.
3.That all property claimed by [Ms Tyrell] to be "family assets", including but not limited to Commonwealth Bank Account BSB […93] Account […98] and […93] […10] but held in the name of [Ms B Tyrell], be declared to be the sole property of [Ms B Tyrell] and be excluded from the property for division between [Mr Tyrell] and [Ms Tyrell].
4.the Applicant shall pay to the Respondent sum of $ 41,230.00 within 30 days of the date of these orders.
5.Except as otherwise provided in these Orders:
a.Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;
b.Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears; ‘
c.Any money standing to the credit of the parties in a joint bank account are to be split equally between the parties.
d.Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
e.Any joint tenancy of the Applicant and Respondent in any real or personal estate is hereby expressly severed.
6.No order as to costs
First Respondent’s Orders sought

The First Respondent Mother’s Orders sought were contained in a Case Outline Document, filed 14^th April 2022. They were as follows (paragraph numbers inserted; emphasis in original):[9]
[9] Proposed Order 6 requires some attention. For more abundant clarity, rather than “the pronunciation” of Orders, presumably the word grasped for is for the Orders to be “pronounced.”
Parenting – Part One
Order to be made prior to judgment
1.The father cause the children to attend upon the independent children’s lawyer and a Child Court Expert at the Canberra Registry of the Federal Circuit Court at 4.00pm on the day these Orders are made.
Parenting – Part Two
Primary Orders
Previous Orders
2.All previous parenting orders in relation to the children:
(a)   [X], born [in] 2006,
(b)   [Y], born [in] 2006 and
(c)   [Z], born [in] 2010
are hereby discharged.
Parental Responsibility
3.The mother have sole parental responsibility for the children:
Immediate Handover
4.The independent children’s lawyer and the Child Court Expert are requested to advise the children of the orders made today and the reasons for the decision and to assist the children to begin the transition to their mother’s care.
5.The father shall leave the Court precinct within 15 minutes of the Court adjourning and thereafter is restrained from returning to the Court, the children’s house, or attempting in any way to make contact with the children thereafter except as set out below in these Orders.
6.Commencing immediately upon on the pronunciation of these Orders, the children live with the mother.
7.The father is to take all reasonable steps to actively support and encourage the children to accept Order 6.
8.The children shall have no face to face time with the father for a period of six (6) months after these orders are made (“the Reintroduction Period”). During that period and consistent with Order 5 herein, the father is restrained by injunction from contacting or attempting to communicate with the children or from attending any school, sporting or extracurricular activity of the children.
9.The mother has liberty to approach the Court on short notice during the Reintroduction Period.
10.After the Reintroduction Period, the children spend time and communicate with the father:
b)    Each alternate Sunday, from 12.00noon until 8.00pm;
c)     By telephone, unless otherwise agreed, each Tuesday at 6.00pm;
d)    At other times as may be agreed between the parties.
11.Unless otherwise agreed between the parties, handovers occur by the mother delivering the children to the father’s house and collecting the children from the father’s house at the conclusion of time.
12.Save for in relation to the father during the Reintroduction Period, each parent is free to be fully involved in the school, sporting and extracurricular life of the children and may obtain school reports, newsletters and the like and attend all events and functions to which parents are invited. This order operates as an order providing authority in those terms to any relevant organisation.
13.Each parent shall inform the other as soon as practicable of any major social, school or extracurricular event involving the children so as to give the other parent the opportunity to participate.
14.Each parent shall inform the other as soon as practicable in the event of any serious illness or injury suffered by the children and shall provide sufficient information and any authorisations necessary to enable the other parent to obtain full information from any treating medical practitioner.
15.Each parent is hereby restrained from making any derogatory comments about the other parent or any members of their family to or in the presence of the children or allowing anyone else to do so.
16.Each parent shall keep the other advised of their residential address, email address, landline telephone number and mobile telephone number by forthwith providing those details to the other, and advising of any change to them within 24 hours of the change.
17.The mother shall take steps (at her cost, if any) to arrange for the children to receive counselling or other therapeutic support to assist them to manage the transition to her care and to deal with any associated issues, such counselling to continue until the therapist recommends otherwise.
18.Each parent shall make themselves available to meet with the children’s therapist set out in the previous Order, if requested to do so by the therapist.
19.The appointment of the independent children’s lawyer is discharged 14 days from today.
Property
20.Within 24 hours, the Husband pay to the Wife the sum of $50,000, such sum to be used by the Wife to fund her immediate accommodation needs and living expenses for herself and the children;
21.Within 42 days, the Husband pay to the Wife such further sum as the Court determines is required to effect a division of the property of the parties such that the Wife retains 60% of the property and the Husband 40%.
22.In the event the Husband fails to comply with the preceding Order:
a)     The Husband shall vacate the property at [D Street, Suburb E] (the [D Street, Suburb E] Property);
b)    The Wife is appointed trustee for sale for the [D Street, Suburb E] Property;
c)     The Wife shall, pursuant to such trusteeship, cause the [D Street, Suburb E] Property to be sold;
d)    The Wife shall cause the proceeds of sale of the [D Street, Suburb E] Property to be applied to pay to her the amount she is entitled to pursuant to the preceding order, and the balance to the Husband.
23.Except as otherwise provided each party retain, to the exclusion of the other, all other items of property in their names, possession or control.
Second Respondent’s Orders sought
The Second Respondent paternal Grandmother’s Orders sought were contained in a Case Outline Document, filed 19^th April 2022. They were as follows (emphasis in original):
1.The property known as [D Street, Suburb E] in the state of New South Wales, Folio Identifier … (“the [D Street, Suburb E] property) be declared to be the sole property of [Ms B Tyrell] and be excluded from the property division between [Mr Tyrell] and [Ms Tyrell].
2.Within 28 days, the parties do all things and sign all documents necessary to transfer the [D Street, Suburb E] property to [Ms B Tyrell].
3.All property claimed by [Ms Tyrell] to be “family assets”, including but not limited to Commonwealth Bank Accounts BSB […93] Account […98] and BSB […93] Account […10], held in the name of [Ms B Tyrell] be declared to be the sole property of [Ms B Tyrell] and be excluded from the property division between [Mr Tyrell] and [Ms Tyrell].
4.The Applicant in the Case, the Respondent Wife, pay the Second Respondent's costs.
Independent Children’s Lawyer’s Orders sought
The Independent Children’s Lawyer’s initial Orders sought were contained in a Case Outline Document filed on 18^th April 2022. They were as follows (emphasis in original):
1.The father have sole parental responsibility for the children, [X] born [in] 2006, [Y] born [in] 2006 and [Z] born [in] 2010; (“children”).
2.The father shall provide information to the mother at the beginning of each term by letter or email. Such information shall include any significant information about their health, education, extra-curricular activities and a schedule of the children’s appointments with their psychologist.
3.The father notify the mother of any significant medical emergency involving the children as soon as possible by email or text message.
4.The father shall authorise the children’s schools to provide copies of the children’s semester school reports; newsletters; school photo order forms to the mother.
5.The parties keep each other advised of any change in their address, contact telephone number and contact email.
6.The father ensure the children have contact details for the mother as soon as he receives such information from the mother.
7.The father continue to ensure the children have access to a treating psychologist for counselling and support.
LIVING ARRANGEMENTS
8.The children shall live with the father.
9.The parents shall do all things necessary to enrol in the [C Contact] and Changeover service ([C Contact Centre]) and ensure they are on the waiting list within 21 days of the date of these Orders.
10.The child, [Z], shall spend time with the mother supervised at [C Contact Centre] for such times as are able to be facilitated by that organisation.
11.The children [X] and [Y] shall be at liberty to spend time with the mother whenever they wish to do so.
12.The children are at liberty to message or call their mother if they choose to do so.
13.The mother is at liberty to send gifts, cards, and letters to the children and the father is required to give any such items to the children.
14.Within 14 days of the date of these Orders, the terms of these Orders are explained to the Children by the Independent Children’s Lawyer.
Immediately before the final day of the Hearing, the ICL emailed to Chambers on 12^th May 2022 an amended Minute of Orders Sought. These were as follows (emphasis in original):
1.The father have sole parental responsibility for the children, [X] born [in] 2006, [Y] born [in] 2006; save that the father is restrained from changing [Y’s] school.
2.The mother have sole parental responsibility for the child, [Z] born [in] 2010;
3.The father shall provide information to the mother at the beginning of each term by letter or email. Such information shall include any significant information about their health, education, extra-curricular activities and a schedule of the children’s appointments with their psychologist.
4.The mother shall provide information to the father at the beginning of each term by letter or email. Such information shall include any significant information about their health, education, extra-curricular activities and a schedule of the children’s appointments with their psychologist.
5.The father and mother each notify the other of any significant medical emergency involving the children as soon as possible by email or text message.
6.Each of the children’s schools is authorised by these orders to provide copies of the children’s semester school reports; newsletters; school photo order forms to the mother. The other parent is restrained from preventing the school from providing such information.
7.The parties keep each other advised of any change in their address, contact telephone number and contact email.
8.The father ensure the children have contact details for the mother as soon as he receives such information from the mother.
9.The parties are restrained from involving [Ms D] as the children’s counsellor. The parties appoint an independent psychologist as the therapist for all the children. That psychologist will be given information from each parent prior to commencing counselling with any of the children. Such information shall include the reports of [Ms E] and the report of [Ms H].
10.The parties are restrained from the use of any physical discipline on any of the children.
LIVING ARRANGEMENTS
11.      [X] and [Y] live with the father.
12.      [Z] live with the mother
13.The parents shall do all things necessary to enrol in the [C] Contact and Changeover service ([C Contact Centre]) and ensure they are on the waiting list within 21 days of the date of these Orders.
14.      [Z] shall spend time with his father as follows:
a.for a period of 4 months the father shall be restrained from making any contact with [Z].
b.thereafter [Z] shall spend time with the father supervised at [C Contact Centre] for such times as are able to be facilitated by that organisation for a minimum of 6 months. [X] and [Y] are to be invited to spend time with [Z] at [C Contact Centre] as well.
c.Thereafter for a further period of 2 months, [Z] shall spend time with the father unsupervised each second Saturday from 10am to 5pm with changeovers to occur at [C Contact Centre]
d.Thereafter [Z] shall spend time with the father from 3pm Friday until 9am Monday (extending to 9am Tuesday if Monday is a public holiday) each second weekend and for the first half of each school holiday period.
15.The children [X] and [Y] shall be at liberty to spend time with the mother whenever they wish to do so.
16.The children are at liberty to message or call their mother if they choose to do so.
17.The mother is at liberty to send gifts, cards, and letters to the children and the father is required to give any such items to the children.
18.The father is at liberty to send gifts, cards, and letters to [Z] and the mother is required to give any such items to the children.
19.At the conclusion of judgement in this matter, [Z] be brought to the Court by the father, and changeover to the mother be effected at the Court.
To state the obvious, such a drastic change in the ICL’s position speaks volumes about the parties’ competing evidence and the ICL’s assessment of the parents. As noted later in these reasons, and submitted by the ICL in her amended written submissions, but for the ages of the older children, she would have sought Orders for a change of residence for all three children.
Father’s oral evidence
Somewhat summarised, the Father’s regularly (and unfortunately) compromised, quite shambolic and regularly incoherent oral evidence (for the reasons set out below) was as follows.
At the outset of his evidence, Mr Tyrell confirmed that he and the Wife lived together at D Street, Suburb E. After they were married, this “marital residence” was provided to the couple by his parents. The Mother was 18 when she married Mr Tyrell who was 10 years her senior.
The first issue canvassed with the Father related to reasonably extensive renovations that were undertaken at the marital residence. Mr Tyrell said that he did most of the renovations and that, effectively, his Wife was a “bystander” who did nothing in relation to them. Somewhat reluctantly he confirmed that Mrs Tyrell did some cleaning up and that her main “thing” was garden work around the property. Her other “thing” related to the use of computers and, he said, shopping.[10]
[10] See T 17 – 19.
Mr Tyrell initially contended that he needed to get permission to do anything to this property either from his Father alone or from both of his parents. At different times, and particularly early in his oral evidence, Mr Tyrell denied that he held out this property as being his own.[11] He declared quite strongly that the residence was not his home. For the following reasons in the light of later evidence, I reject this claim.
[11] T 19.
He was next taken to a document from the Commonwealth Bank called a “low documentation loan declaration”. He had mostly a very poor, but sometimes quite selective, recollection of quite a range of documents. In relation to this “low document loan declaration”, he said he may have “possibly” completed it.[12] The document was dated 13^th May 2010; he confirmed that the signature on it looked like his. On this document, he declared that his total assets were “1.3 million dollars”. He said that if this was on the document it must be what he had declared to the Bank.[13]
[12] T 19 – 20.
[13] T 20.
Next he said that in relation to documents such as these, and in going to such an appointment at the Bank, he took the title deeds of D Street, Suburb E. He said he went with his Mother. He confirmed that she was the one behind this loan and she was the one “that was in charge”.[14] As such, presumably she was the only person who had access to the relevant title deeds, and was, therefore, the person who furnished her son with them.
[14] T 20.
When he was then taken to a specified CBA account number (ending in …48), he said he did not know that this was an account that he held jointly with his Mother. He said; “all I ever knew that my Mum put me on as a power of attorney… so that’s what that would be. Because I didn’t have the right to take out without my Mum telling me what I should do, and my Mum did.”[15]
[15] T 21.
A little later when taken through the document, that is the bank statement, which listed his and his Mother’s names on it, he acknowledged that as a joint account holder he did have the right to use the account. Somewhat reluctantly, he acknowledged that he organised (with his Mother’s consent obviously) for his Wife Ms Tyrell to be an authorised signatory on that account. In this regard he said, for the first of many times, that he signed the authority for Ms Tyrell to operate on this account, but that he signed “everything that I was told to sign, always.”[16] He said he would have signed anything for Ms Tyrell but also confirmed he signed anything for his Mother.[17] Then followed this exchange:[18]
Did you make transactions on that [joint] account?
She [[Ms Tyrell]] had the cards. I didn’t have any… she would do the access on the cards. She looked after them. Looked after all that for me. I’m not that [good at] paperwork… I’m not that good [with it].
[16] T 21.
[17] T 22.
[18] See T 22. Other instances where the same evidence was given by Mr Tyrell regarding his lack of knowledge and ability regarding paperwork is to be found at T 28, 30, 33, 60 and 147.
He confirmed that in May 2010 he signed an application for a mortgage with the Commonwealth Bank of Australia (“CBA”). This was to borrow $200,000. He said this was, amongst other things, to pay out a builder in relation to work done on one or more other properties owned by his Mother. I need not go into any further detail regarding this mortgage at this stage. It was the case again, however, that upon being shown various documents that contained his signature, Mr Tyrell acknowledged that he must have signed them but said that he had very little practical knowledge of their operation or the circumstances surrounding them. This included, for example, the proceeds of sale for a property in Town J which went into this same joint account.
This Town J property was more recently owned by his sister. Unfortunately, his sister died a number of years ago. The immediate issue for the Court, however, related to the various contributions by Mr and Mrs Tyrell in relation to the cleaning up of this property and the preparation of it for sale. This was another instance where the Husband in many respects sought to play down the contributions of the Wife to this clean up; he also sought to limit the period of time over which the various clean up contributions happened, and rather increased his account of his own contributions. As a general proposition, without going into all of the nuts and bolts here of who cleaned what, who painted what, who disposed of what, it is more likely than not, in my view, that the downplaying of the Wife’s contributions was somewhat too harsh and that the Husband’s contributions were slightly exaggerated, but still likely to be somewhat more than the Wife’s.[19]
[19] See for example T 23 – 28. Among other things, see for example the cross examination of Mr Tyrell in relation to material produced under subpoena from NSW Police regarding the frequency of his attendance at the property and that, according to these same records, the process of renovation and cleaning of the property had been going on for “the past year”. These records of themselves tend to support more the Wife’s evidence that the clean-up of the Town J property took rather longer than Ms Tyrell said.

The next issue that was canvassed with Mr Tyrell related to information provided to Company AN in relation to a lease arrangement for a car with that company. It was again prefaced by reference to the loan document he had signed with the Commonwealth Bank in which he had held out to the CBA that D Street, Suburb E was owned by him. He confirmed that this was the case with the Bank. He did the same thing in relation to the finance sought from Company AN. This was also in circumstances where he said that his parents made it clear to him that the property was not his. He seemed regularly not to appreciate the clear inconsistency between the various factual realities that were put to him.
After a little difficulty and over a period of time, he acknowledged that on the forms that were filled out for the Motor Vehicle 1 lease/loan, he ticked the box “owner” in relation to D Street, Suburb E, and confirmed that its value was $800,000. When these facts, as set out in this document, were confirmed to him he simply said that it must be the case if it is (or was) what he signed.[20] He also confirmed, with qualification, that the description of his occupation on these forms as a “property investor” was not something that he had himself filled out. He later confirmed that in fact he was not a “property investor.” He said he did not know how or why he had declared to Company AN that he was a property investor – because he was not. He acknowledged, however, that because his signature was there he must have signed it in 2016 as the document declared. He said he honestly did not know why he was described in his own document as a “property investor”. Somewhat incredulously he said “I would never had done that deliberately”.[21] As noted earlier, the Father’s evidence was quite shambolic, regularly incoherent, and significantly unreliable.
[20] T 29.
[21] T 30.
Again he said,[22]
HIS HONOUR: But you would have read the document before you signed it, yes? ….
I just signed it.
You just signed it. Someone else told you to sign it, did they? …
If you ask me to sign something, you’re not going to do the wrong thing. I will just sign it.
Why? What if [Mrs Tyrell] had come along and said…
I always sign.
… so anything that’s put in front of you by either your Wife when you were together or by your Mother, you would just simply sign? …Yes
[22] T 30.
His recollection was that these documents for Company AN were filled out at home and that obviously the errors and incorrect statements in them were his fault.[23]
[23] T 31.
Still in relation to these records and the information provided to Company AN, he confirmed that the documents list D Street, Suburb E as his “personal home” which had a value of $800,000. In these documents he also had listed motor vehicles worth $40,000, and that his monthly income was $7,000. He confirmed that he did not know the source of this monthly income; he further confirmed that he did not have a monthly income of $7,000.[24] He said he never read the papers in relation to this documentation but also said that it was his fault because he signed them. He said that they were put together by “Ms Tyrell and me”.
[24] T 32.
To state the obvious, on every piece of evidence, Mr Tyrell has never earned regular income, let alone anything like $7,000 a month. He is, and always has been, completely dependent upon funds from his Mother to which he had free and ready access. This is also in circumstances where, on his documents filed, he is in receipt of a disability pension. It is also plainly the case that the representations that he confirmed he made to secure finance at different times – with or without genuine thought or understanding – were blatantly wrong and completely misleading in every respect. Indeed he stated the following when similar propositions were put to him: [25]
… you agree though, don’t you, that in November 2016, you held yourself out as having these assets to [Company AN] in order to secure finance, didn’t you?--- If that’s what it says, then.
Yes. And in 2010, when you applied for a loan with a Commonwealth Bank, you held yourself out as having assets including number [[D Street, Suburb E]], didn’t you? --- I just went in with my mum.
... HIS HONOUR: But you represented though, as recorded in the documents that you’ve been taken to, you recorded that you were the owner of this property, yes? --- Yes. If that’s – yes.
Well, that’s what the documents say that you’ve been taken to and you’ve confirmed that it’s your signature on each of those documents? --- Okay, yes. I signed it.
… And you signed those documents as the owner, didn’t you? --- I signed them because my mum wanted them done. That’s it.
You and [Ms Tyrell] entered into the negotiations with the builder [for renovations], didn’t you? --- She had a plan of what mum wanted and I was very grateful for it, and I would’ve signed - I signed whatever you - if it’s my signature, it’s me.
[25] T 33 – 34.
In relation to renovations at D Street, Suburb E, the Husband and Wife’s signatures, as owners, appear on every page of the contract with the builder who was to undertake the renovations. Mr Tyrell confirmed that it was his signature and that of his Wife and that they signed as “home owner”.[26] Mr Tyrell also confirmed that he would have only signed the contract for the renovations in 2009 if his Mother approved of him doing so. Indeed, he agreed with the proposition that he would have only done this “knowing that your Mother approved”.[27]
[26] T 34.
[27] T 35.
There followed a dispute with the builder which ultimately led to bankruptcy proceedings against Mr Tyrell. Ultimately, his Mother [the Second Respondent] paid out the money owed to the trustee.
Then followed a discussion with Mr Tyrell about how the Title to D Street, Suburb E came to be in his name. Doing the best that one can from less than clear evidence from him, the main steps that were involved here were that he and or his Mother applied to the Commonwealth Bank for what was called a “Wealth Package Application”. That also involved Mr Tyrell completing a statutory declaration on 15^th July 2010 (obviously bearing his signature). That statutory declaration asserted and confirmed that Mr Tyrell was identical with the registered proprietor of D Street, Suburb E, who was in fact his late Father, Mr K.[28]
[28] See T 36 – 43 and documents commencing at page 33 of the Mother’s Tender Bundle.
After further questioning, the Husband confirmed that his statutory declaration was false because he was declaring that he was the same person as his [late] Father, which patently he was not.[29] This acknowledgement of false statutory declaration, which ultimately led to the D Street, Suburb E property being transferred into the Husband’s name, led the Court, for more abundant caution, to grant to the Husband a certificate in relation to this evidence under s 128 of the Evidence Act 1995 (Cth).
[29] T 43.
While there is more detailed documentary evidence in relation to the following matters, it is sufficient here to note further Mr Tyrell’s evidence regarding certain aspects in the dealings with the D Street, Suburb E property. For example, notwithstanding his earlier statutory declaration for a change of name in relation to the property by which he was able to represent that he was the owner of it, for the purposes of the bankruptcy proceedings, he also declared that number 17 was not his property.[30]
[30] T 44.
Mr Tyrell confirmed that his bankruptcy was resolved in or about 2013 when his Mother paid out the debt owing arising from a dispute with a builder concerning renovations. Mr Tyrell maintained that he did try to make arrangements to have the D Street, Suburb E property transferred back to his Mother. He claimed that he contacted Mr F, solicitor, in order to arrange this. He acknowledged, however, that it was never transferred back to his Mother. As noted below, the written evidence from Mr F which came to the Court only after the hearing concluded, contradicts Mr Tyrell’s evidence. This is because on multiple occasions in writing, Mr F sought specific instructions regarding the re-transfer of the D Street, Suburb E property to the paternal Grandmother; ultimately, however, Mr F closed his file in 2015 as a result of the failure to obtain relevant instructions from the Grandmother. As already noted, some curious, further details are set out later in these reasons as a result of the very late disclosure of the full range of documents from Mr F, via the Father’s solicitor, which only really came to light after the final hearing because of (a) enquiries by the Court and (b) further enquiries of the Wife’s solicitors.
Quite a few questions arise in these circumstances not least in relation to the conduct of Mr Tyrell’s lawyer, Ms Wearne, concerning the duty of full, complete and ongoing disclosure.[31] Among other documents not produced/disclosed was a much more recent Will and Codicil of the paternal Grandmother (of obvious relevance to the Husband’s assets/financial resources); this Will and Codicil had in fact been prepared by the Father’s now solicitor, who obviously then acted for the paternal Grandmother. The Court may reasonably infer that this lawyer retained at least a copy of the Wills and Codicil. Why they were not disclosed and provided earlier has never been properly, or fully, explained. The later joint written submissions on behalf of the Applicant and Second Respondent do not address these matters.
[31] See Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Notwithstanding that the issues of disclosure and much else are addressed later in these reasons, it is as well here to note the following testamentary documentation, and who acted for whom:
(a)Copies of three Wills of the Second Respondent Grandmother, dated respectively 22^nd October 2008, 5^th April 2011, and 20^th July 2011, were provided to the Court by the Father’s solicitor after the completion of the final hearing, following a direction from the Court. The Respondent Mother was a beneficiary under the first and third of these Wills;
(b)A fourth Will was executed by the Grandmother, dated 24^th December 2019. This was the day after the troubling incident at the Bank where the Mother was allegedly withdrawing all funds from a joint account. This Will disinherited her son Mr Tyrell (but kept him as Executor) and removed the Respondent Mother as a Beneficiary. The sole Beneficiaries were the Grandchildren. There is also a Codicil, dated 30^th December 2020, to the Grandmother’s last Will. The Codicil grants the Applicant Father a life interest in the D Street, Suburb E property, but which terminates if, for example, he re-marries or enters into a de-facto relationship. This last Will and Codicil were both drawn, and witnessed by, the Father’s now solicitor.
(c)The solicitor who prepared these first three Wills was Mr F, the Grandmother’s long-time lawyer but who (as earlier noted) ceased acting when he failed to receive instructions from the Grandmother regarding the D Street, Suburb E property.
Relevant to the issue of the transfer/non-transfer of the D Street, Suburb E property is the fact that a number of other properties which the Grandmother acquired under her deceased Husband’s estate were all relevantly transferred to her: thus, properties in Town J and Town L, and elsewhere. As noted in more detail later, in correspondence from the Grandmother’s then solicitors, the original position was that the D Street, Suburb E property could not be transferred because the title deeds had been “misplaced”. Very curiously, it is now known that a little time later, for reasons not explained, Mr Tyrell (or someone else) somehow and somewhere located these deeds and was able to use them for later financial purposes. If he did not have them previously, the only person who could have had them was the paternal Grandmother.
Mr Tyrell confirmed that, although he went to the Commonwealth Bank with his Mother on 23^rd December 2019, he was not with her when she transferred out of the “joint account”, to which the Mother had access for the duration of their long marriage, $500,000. These funds were transferred into an account in the Grandmother’s sole name.[32] This was in response to a belief (not relevantly particularised) on the Father’s and the Grandmother’s part that the Mother was going to, or was in the process of, taking all the funds from that account. The Mother’s evidence was that, at that time, she was not seeking to clean out the account, so to speak, but simply to obtain $50,000 from the account for immediate and medium-term living expenses.
[32] T 47. See also the further discussion at T 58 – 59.
He next confirmed that he is the “only surviving child” of his Mother and, on the Grandmother’s Affidavit evidence, she had recently changed her Will to exclude him as a beneficiary, except for a “life interest” to reside at the D Street, Suburb E property. He further confirmed that under an earlier Will, he was a beneficiary.[33]
[33] T 48.
In response to a series of questions about how he would support himself upon the death of his beneficent aged Mother (now in her mid-nineties), first he said that he had a job. Shortly after this he said that he was “going to be employed” as a tradesman. He said he did not ask what his income would be; he just wanted a job.[34] He said that he would try to work five hours, five days per week. He thought the hourly rate of pay would be $26. There was no mention about him being on a disability pension.
[34] T 49.
Mr Tyrell confirmed that on the day his Mother withdrew all the funds from the joint account and put them into a new one in her name (but no other details were provided), she signed a power of attorney in his favour, which he still holds.[35]
[35] T 50. He also said that Ms Tyrell kept her own bank account, to which he did not have access, for her own money. The funds in this account came only from Government benefits. See also T 65.
The Father confirmed that the children have not seen their Mother since the end of December 2019. The only exception, he said, was when the parties (and the children), at different times, saw the family consultant (Ms E). There followed this exchange:[36]
Is it correct to you say that you’re very – you remain very upset about [Mrs Tyrell] having had an affair with [Mr M]?---It’s not the first time. I – I wanted to take her back. Unless it’s the child people that – the – when the child people came, when she told people that I was raping my kids and stuff, they even said to me if you brang it back into this house, we will take you to court and take your kids off you. So I would have taken her back.
[Mr Tyrell], is it your evidence that - - -?---I would have taken her back.
Is it your evidence that Child Protection said that someone made a report that you were raping your kids?---That I was molesting my children or something like that. They came in the house. They went through – they took the children out of school. I didn’t know about any of that and they - - -
[36] T 53.
Leaving to one side the confused and confusing evidence of Mr Tyrell, for example, his apparent conflation of “raping my kids and stuff” with “molesting my children or something like that”, these matters are canvassed with rather more clarity and detail in the Mother’s evidence later in these reasons.
A little later, Mr Tyrell confirmed, in my view again using extreme language, how distressed he was by what he said were accusations of “being a paedophile or any of that.” He claimed that he had strangers come up to him in the shops in front of the children and “say things to me right in front of them and ask”.[37]
[37] T 54. See also even more graphic details about his claims in relation to, for example, allegedly having a “sex room” or “sex dungeon” at his residence and that in some way the children had allegedly heard such claims as well. Some of his claims also related to explicit detail, allegedly recounted by the Mother to the children, of the Mother’s sexual encounters with her boyfriend Mr M (see T 77 – 78). The Father contended that the children were very hurt by the Mother’s affair (see T 79). Later, the Father confirmed that when Care and Protection Authorities had spoken with the children regarding various allegations, he did in fact briefly speak with the children about it. But he maintained that the allegations regarding these matters and what he understood to be allegations of being a paedophile were all made by the Mother to Care and Protection (T 82).
There was a relatively brief discussion with Mr Tyrell again concerning the obtaining of the Motor Vehicle 1. It was previously discussed in the context of the arrangement of finance and the many inaccurate statements made by Mr Tyrell in his documents. Here the focus was more upon who was, in a sense, the driving force behind obtaining the vehicle. Mr Tyrell said that the original means of travel for his Mother was a van which the paternal Grandmother found extremely difficult. He said that the use of the van was “a disaster for my Mum”. This ultimately led to him confirming that Ms Tyrell assisted his Mother “getting around” by driving her to various appointments and otherwise. Unsurprisingly, the Motor Vehicle 1, in every relevant respect, was a more comfortable vehicle for his elderly Mother.[38]
[38] T 62.
Further confusing comments were made by Mr Tyrell regarding (a) him contending that after Ms Tyrell being removed from the family residence in December 2019, he encouraged the children to call their Mother, and earlier to send her a Christmas card; (b) he said he could not recall (and at other times denied) receiving letters from the Mother’s then lawyers seeking to arrange for the children to spend time with the Mother, (c) he alleged that on 6^th January 2020 the Mother broke into the family home to steal the children’s money, and (d) he somewhat vaguely acknowledged on this same date that an Apprehended Violence Order issued from the Local Court at Suburb E that permitted the Mother to attend the former marital residence.[39]
[39] T 66 – 68.
The Father denied firmly that he ever spoke with the children about the matters that are before the Court. These matters also included the Mother’s “affair” with Mr M and the nature of their relationship.[40]
[40] T 69.
In the first of a number of questions relating to similar areas of inquiry, the following matter concerning him making sexualised comments about his daughter X to a group of school boys, as reported by a teacher at that school, was recorded this way:[41]
[Mr Tyrell] called out to the [N] boys who were walking past and asked them to stop and listen. He told the boys [N] was accepting girls now but only of a certain calibre. They have to be hot. [Mr Tyrell continued to say how he worked the boys up to expect a hot chick to come out of the bathroom. His daughter came out of the bathroom and all the boys saw her and she was embarrassed.
[41] T 66 – 70. These matters are recorded in documents in the Mother’s Tender Bundle at p.71.
In the course of questioning the Father about steps he has taken to encourage the children to speak and spend time with the Mother, Mr Tyrell was taken to Consent Orders made on 11^th November 2020 and asked what he understood his obligations under them were. Unfortunately, the Father’s responses were shallow and regularly uncomprehending, lacking in insight and devoid of detail. The lengthy comments and replies speak for themselves:[42]
[42] T 71 – 73.
And on 11 November 2020 there was some orders made by this court, weren’t there? Do you recall entering into those orders?---Yes.
Do you recall that there were orders that were intended to introduce or re-introduce the children to their mother?---No.
You don’t recall that?---I don’t. No.
What do you think the intention of the orders was in relation to the time that the children were going to spend with their mother?---I thought it was - - -
What’s your recollection?---I just thought it was that they actually cared about the children. That they actually cared about their safety. That - - -
What - - -?--- - - - people actually cared. That - - -
HIS HONOUR:   Sorry, which people?---That’s what this – what the court was for. To get them help. Get them - - -
Sorry, to get who help?---The children. [X] and [Y] and [Z].
Well, we arrange - - -?---That’s – yes.
- for an independent children’s lawyer to be appointed and Ms Burgess has been
- - - slaving away for all - a good while, has she not?---I’ve never spoken to her for a long time. Ever.
But you’ve spoken to the family consultant, [Ms E]?---Who’s that?
She’s not here. She wrote the reports?---Yes, I saw her. Yes.
Right. So when you say these people are meant to help, well, the court’s tried to
?   Yes. That’s what it was
at least on a couple of fronts, right?        about. Yes.
Right?   That’s what I meant. I didn’t mean it negative. I meant it in
No. I was just trying to clarify, that’s all?   Yes.
MS CURRAN:   [Mr Tyrell], what did you believe your obligations and responsibilities were once you entered into those orders about the children spending time and communicating with their mother?   Do what the doctors tell me to do.
Which doctors?   The – I saw – I’d take them to their family GP. I’d take them to their – the psychologist. He was – she was organised by New South Wales people. I don’t know – I didn’t choose any of them and they just organised it and said go there and I went there and take them to this place and I did and they might not want to have but I still go them there.
And you took them to see a psychologist, their psychologist, didn’t you?   Yes. The one that the – they said to take it to.
And was that around March?   I don’t know.
You don’t know when you took them. So the orders were entered into in the     ?   I just did – when I was told what to do and I did it. Not deliberately. I didn’t mean to hold it up or anything. I didn’t – never did.
And so one of the orders that you entered into, order 12, was that [Z] shall spend time with the mother supervised at [C Contact Centre] for such times as able to be facilitated?   Yes.
And what happened with [C Contact Centre]?   [C Contact Centre] refused it.
[C Contact Centre] refused it?   Yes.
How did that happen?   Well, they – I brought [Z] in that – because they wanted to see me as well and I know that [Ms P] had made an order that I go and do courses at [C Contact Centre] and then that [Ms Tyrell] would have to as well.
HIS HONOUR:   Sorry, Ms Wearne made orders for you to do this?   Yes. She wanted me to go and – better parenting and all – just – and then when I was there I reminded them I had papers from the court. I don’t know when. I just know I gave them to them and I – if I saw her face I’d know it, but she said that we do not want to see the children at the moment while something – and that – they would have in that in paper at [C Contact Centre]. Because I came punctually every time, and even with them, and she said we do not want to see them at the present while I – I can’t tell you the reason. But it was …

For the reasons given, in my view, there was also clear lack of financial disclosure by the Husband in the course of this litigation.
For these reasons, the conduct of the Father’s/Husband’s lawyer should be referred to the Law Society for consideration. I request that the local Registrar of the Court provide a copy of these reasons to the Law Society.
Also in these reasons I have set out the multiple concerns regarding the conduct of the children’s counsellor, Ms D. For the reason given earlier, in my view, her conduct was unprofessional and unethical. Her conduct could, and perhaps should, have led to her being cited for contempt. Strictly, her actions were an abuse of the Court processes. I also request the local Registrar of the Court to provide these reasons to the relevant psychologists’ registration board for consideration.

I certify that the preceding three hundred and twenty-seven (327) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated:       14 September 2022
Annexure A
Chronology of Events

Date Event

1966 Mr Tyrell born (now aged 55)

1976 Ms Tyrell born Country AG (now aged 45)

1984 Mother comes to Australia aged about 8 yo

1993 Mother and Father meet; father invites mother to JW

1994 Mother joins JW

1994 Parents marry

Approx 1998/1999 Father locks mother out of house - Relates to Mr AP living with them – father suspicious. Mother goes to stay in Sydney with her family. Father asks her to make allegations against Mr AP.

2000 Mother’s brother, Mr AK, living with parties. Mother says father showed Mr AK porn.

Mid 2005 Mother says father pressured her into having an abortion

2005 Father says he starts drifting from the church

2006 X & Y born (now aged <16)

June/July 2006 Dispute over a car between father and his sister.

29 August 2007 Mother says father obtained extra scripts for benzos and opiods

2008/2009 Mother says father taking children to the “workshop”

2009 Renovations commence on family home

2009 Mother wants to take the twins to ‘preschool’for a break; father disagrees.

2010 Mother applies to home-school the children. Mother says she was solely responsible for the schooling

2010 Z born (now aged 11)

2011 Mother says father started sexually assaulting her

18 June 2012 X (aged 6) locked in car at AQ Shopping Centre. Police incident

2013 Father diagnosed with depression and anxiety – referred to psychologist

2014 Father claims mother’s anger escalating. Mother expressing a wish never to have had the children.

2011 Default judgement against mother and father for failure to pay
>$37K to builders

July 2012 Father becomes bankrupt owing $74K

2014 Children commence attending formal schooling

2015 Father’s sister, Ms S, dies

End 2015 Mother explores enrolment at School Q; alleges father name calling during a tour of the school

2016 Mother stops attending church – she says at father’s pressure

?2016 Children start attending school:

8 August 2017 Police record father as suspect shop lifter

2018 Mother says father hit X leaving welt on her leg

August 2018 Father decides to enrol the boys in School AB; and wants X to attend School V

September/October 2018 Meeting at School AB to discuss enrolment

2018/2019 Mother alleges father stealing inc lizard, turtle

2019 Z and Y commence school at School AB; Z in year 4; Y in year 7. Z was skipping a year. X commenced year 7 at School V

2019 Father is friends with Mr M

Mid 2019 Y moved from School AB to School W where he still attends

4 July 2019 Mother receives an email from Company AR complaining about the father’s behaviour towards other people.

October 2019 Mother has an affair with Mr M. Father alleges mother openly boasted about sex with Mr M. Father claims mother took the children to see a house and showed them their room

December 2019 Messages from Y to mother saying he loves her

23 December 2019
Father alleges mother was at the bank trying to withdraw Ms B Tyrell’s money. He claims mother tried to hit him at the bank, and X stopped her.

AVO application page 155 father’s affidavit – says says father ripped cheque book from mother and called her a thief, slut, whore; that father elbowed mother in stomach; mother went to police station
Police did not believe the mother – sought AVO to protect father

29 December 2019 –
30 December 2019 Father says mother returned from a day out with Mr M and was
very angry & demanding the father leave. Mother goes to police station. Father is arrested in front of the children. Later released

without charge. Police take AVO against mother after interviewing father – requiring mother to leave the house.

This marks the separation of the parents.

December 2019 –
January 2020 Father says the mother lived with Mr M; mother says she stayed with Mr M’s mother for about 2 weeks (or a few days) then goes to a Refuge.

6 January 2020 AVO matter before the Court. Restriction on mother being at the family home removed from the order.
Mother says she went to see the children but unable to gain entry to house – a number of times 7-14 January

Early January 2020 Mother starts attending church. Is encourage to confess adultery. Church support encourages her to forget about the children
Mother says churchgoers tell her the father is getting the children to tell elders mother had an affair

21 January 2020 Father files initiating application in FCC

29 January 2020 Father takes the children to Ms G to obtain a wishes report for Court. Mother not informed or involved.

10 February 2020 First return date in FCC. Consent orders providing for no time with mother.

11 February 2020 Ms G first report

24 February 2020 AVO made final for 6 months – para 1 only

6 March 2020 Consent Orders for father to have SPR, children to attend therapy; liberty for children to contact mother

March 2020 Children commence therapy with Ms D

March 2020 Father claims centrelink benefits for the children

April 2020 Mother says father told her he recorded her with Mr M and involved the children

August 2020 Mother says neighbour claimed to have been told she was dead

July 2020 Mother starts attending psychologist Mr T

31 August 2020 Second Ms G report

September 2020 Ms AS organises a meeting of the parents

17 September 2020 Mother attends meeting with JW elders

18 September 2020 Mother ‘disfellowshipped’ & shunned from JW

30 October 2020 FDRC at Legal Aid. Matter not resolved. JW support attends with mother (Ms AS)

October 2020 –
February 2021 Mother says she was told the father and children were attending JW meetings and said mother had abandoned the children

11 November 2020 Interim orders for inter alia, supervised time for Z; mother to provide her contact details for children; mother at liberty to send things to the children.

14 November 2020 Father says mother sent him an SMS saying she was ashamed of what she had done and that the father was ‘respectful, gentle, and caring’

17 November 2020 Mother and father attend joint session with Ms AS

12 March 2021 Ms D advises Z spending time with the mother would be detrimental to his well-being;

16 March 2021 Father files 2 x reports from Ms G

14 May 2021 Parents divorce

June 2021 Mother tries to commence family therapy

16 December 2021 Release of family report by SC

11 February 2022 Orders for family therapy to commence

9 March 2022 FGD seeks report from mother’s treating psychologist

18 March 2022 Release of supplementary family report

21 March 2022 Father says mother provided gifts to the children via the therapist and that this was the first time she had done so

28 March 2022 Report by Mr T – mother’s treating psychologist
Annexure B
Annotated Tender Bundle Index
RELEVANCE OF TENDER BUNDLE DOCUMENTS
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
CAC 103/2020
BETWEEN
Mr Tyrell (Applicant)
AND
Ms Tyrell (First Respondent)
AND
Ms B Tyrell (Second Respondent)
AND
Independent Children’s Lawyer
21 April 2022

NO

AFSA Subpoena #10 Material

PAGES

Relevance for Submission

(1)

Statement of Affairs dated 19.07.2012

1 - 12

Ownership of D Street, Suburb E Property

·           Page 40 – lists debt to builder as a liability noting builder was engaged for renovations on D Street, Suburb E Property, but does not disclose D Street, Suburb E property as asset

(2)

Letter from AFSA to Mr Tyrell dated 13.07.2015

13 - 17

Confirmation of date of annulment of bankruptcy

(3)

Declaration of Intention to Present Debtor's petition dated 28.06.2012

18 - 20

Ownership of D Street, Suburb E Property

·           Page 20 – builder listed as creditor but does not disclose D Street, Suburb E Property as asset

(4)

Letter from AFSA to Mr Tyrell dated 15.07.2013

21 - 22

Ownership of D Street, Suburb E Property;

Credibility

·           Page 21 – AFSA questioned why the D Street, Suburb E Property wasn’t disclosed as an asset when the debt for the renovations on the property was listed as a debt

(5)

Email from KJB to ITSA dated 01.08.2013

23

Ownership of D Street, Suburb E Property;

Credibility

·           Page 23 – Admission of signing false statutory declaration; note about how the Husband borrowed money from the bank for work on the property as “owner” of the property; signed a contract as owner of the property.

(6)

Letter from AFSA to Mr Tyrell dated 09.10.2013

24 - 25

(7)

Letter from Mr AM to Trustee in Bankruptcy dated 24.06.2013

26

Ownership of D Street, Suburb E Property;

Ms B Tyrell’s knowledge of property owned in Husband’s name;

Ms B Tyrell’s failure to remedy ownership issue despite representations that the property is rightfully hers;

·           Page 26 – Ms B Tyrell’s lawyer says “I am unsure as to how the property was transferred into Mr Tyrell’s name but, once we confirm that it should property be in Ms B Tyrell’s name, that transfer will be reversed.”

(8)

Declaration of Intention dated 19.07.2012

27

(9)

Timeline of events re Property

28 - 29

This chronology provides timeline re the varying and conflicting representations he made to AFSA

(10)

Grant of Probate [Mr K] dated 12.09.2011

30

Ownership of D Street, Suburb E Property

·           Probate granted on 12 September 2011, yet no steps taken to transfer property to Ms B Tyrell’s name

(11)

Change of Name dated 15.07.2010

31

Knowledge of ownership of D Street, Suburb E Property;

Credibility – Contradictory representations to AFSA to suit his case

NO

CBA Subpoena #8 Material

PAGES

Relevance for Submission

(12)

Low Documentation Loan Declaration dated 13.5.2010

32

Ownership of D Street, Suburb E Property;

Representations about the value of his assets

·           Page 32 – Lists total assets as $1.3mil and total liabilities as $500

(13)

Change of Name dated 15.7.2010

33

Knowledge of ownership of D Street, Suburb E Property;

Credibility – Contradictory representations to AFSA to suit his case

(14)

Application Wealth Package dated 15.7.2010

34 - 35

Knowledge of Husband’s joint interest with Ms B Tyrell in the CBA …48 account

(15)

Loan Account Authority Borrower dated 15.7.2010

36 - 38

Knowledge of Husband’s joint interest with Ms B Tyrell in the CBA …48 account;

Usage of CBA …48 account as parties’ joint account

·           Page 37 – authorises direct debits for payment of loan from …48 account

(16)

CBA Loan Application dated 22.2.2011

39 - 45

Knowledge of Husband’s joint interest with Ms B Tyrell in the CBA …48 account;

Usage of CBA …48 account as parties’ joint account

·           Page 40 – Husband lists CBA …48 account as the repayment method for the payment of the loan.

Ownership of D Street, Suburb E Property, D(2) Street, Suburb E Property, Town L Property

·           Page 42 – Husband lists all of the above properties as properties owned by him as at the date of the Application.

NO

CBA Subpoena #13

PAGES

Relevance for Submission

(17)

Cancelled Authority to Operate (Third Party) dated 30.06.2015

46 - 47

Prior to cancellation Wife was an authorised operator on the account;

Knowledge of Husband’s joint interest in …48 account;

Usage of CBA …48 account as parties’ joint account

(18)

Request to Cancel Authority to Operate (Third Party) dated 23.12.2019

48 - 50

Same as above – usage continued until 23 December 2019 when Ms Tyrell’s authority was removed

(19)

Withdrawal from x…48 ($500,000) on 23.12.2019

51 - 52

Deliberate transfer of funds from …48 account to quarantine the funds, where documents above show that the Husband was a joint account holder.

No evidence of wife attempting to remove $500,000 – and bank manager was not called (Jones v Dunkel) Wife’s evidence was her attempt to withdraw $50,000.

(20)

Letter from Mr F to CBA – Property Transfer dated 20.05.2020

53 - 54

Knowledge of existence of the false statutory declaration – requests that CBA provide them with a copy of the Change of Name document.

(21)

Customer compliment overview by Husband dated 23.12.2019

55

Husband is recorded as referring to his wife as estranged.

NO

Company AN Subpoena #9 Material

PAGES

Relevance for Submission

(22)

Company AN Application dated 16.11.2016

56 - 58

Lists value of total assets as $2,644,000, with a value of $800,000 on personal home and $1,680,000 on investment properties.

Husband’s occupation.

Contradicts evidence to the Court that he has no interest in any of the D Street, Suburb E properties, the D(2) Street, Suburb E Property, or the Town L Property.

This well post-dates the bankruptcy proceedings.

NO

Section 69ZW Material

PAGES

Relevance for Submission

(23)

Incident report dated 08.08.2017

59

Stealing– noted he was identified and known to steal from that shopping centre – consistent with wife’s evidence.

PAGE 6 – Of NSW police notes from 09.08.2017 – “known for stealing… Store AT and Store AU” – this report was from chemist.

(24)

Incident report dated 04.03.2017

59

Issue with neighbour while renovation/clearing and making ready for sale at Town J property – antisocial type behaviour

(25)

Incident report dated 17.02.2017

60

Issue with neighbour while renovation/clearing and making ready for sale at Town J property – antisocial type behaviour

(26)

Incident report dated 25.01.2017

60

Issue with neighbour while renovation/clearing and making ready for sale at Town J property – antisocial type behaviour

(27)

Incident report dated 25.01.2017

61

Issue with neighbour while renovation/clearing and making ready for sale at Town J property – antisocial type behaviour

(28)

Incident report dated 01.12.2016

61

Further unusual behaviour/Issue with neighbour

·           Father made a report claiming that the neighbour had fired a gunshot at his house targeting the family. Police couldn’t find any shell or remnants of a round, police believed that the Father may have caused damage to the window.

(29)

Incident report dated 18.06.2012

62

Husband’s behaviour

Left daughter who was 6 years old at the time, locked in a car in an underground car park. When confronted by police, he was aggressive and belligerent to police officers, and started mocking the police officers.

NO

School AB Subpoena Material

PAGES

Relevance for Submission

(30)

Pastoral Care Incident dated 25 June 2019

63

Disturbing behaviour; problematic engagement with school

·           Page 63 - Staff called to speak to him about Y’s grade. Father strayed from the topic and started talking about his “religious background, NAZIs and the rape of his mother’s twin sister at the end/during the war.”

(31)

Incident report dated 13 February 2019

71

Disturbing, inappropriate and sexualised discussion and unusual engagement with the school.

Long file note about meeting at school where Father made strange, offensive and odd comments. These comments included discussion anal sex with the boys and the discussion with School AB boys about his then 12 year old daughter.

Teachers found the conduct disturbing.

(32)

Pastoral Care Incident dated 19 November 2020

64

Smear campaign against the Mother, to the school; attempts to isolate Mother against School – although this was 11 months since the mother had seen the childrne at all

·           Page 64 – “Of the 10 minute conversation, Mr Tyrell spent around 8 minutes of it talking about his ex wife and the disruption that she is causing to him and his family”

(33)

Pastoral Care Incident dated 27 November 2020

65

Antisocial behaviour

·           Page 65 – Incident where allegation was made against the Father for taking photos of two random boys at the school. Security footage appeared to support the boys’ version of events. But it was denied by the Father.

(34)

Emails between school staff 26 to 28 May 2020

66-67

Addressed Father’s irrational belief and assertions that the children are gifted and Z ought to be in the year above him

(35)

Emails between school staff 26 November 2020

68

Disproves Father’s assertion that children have been doing much better at school and thriving since Ms Tyrell left

This together with the evidence of school records and the XXN of father shows he believes and maintains his own narrative in spite of clear contrary evidence.

(36)

Emails between school staff 31 March to 19 April 2021

69-70

Disproves Father’s assertion that children have been doing much better at school and thriving since Ms Tyrell left

(37)

Incident report dated 13 February 2019

71

Highlights antisocial and problematic behaviour with engagement with the school.

Long file note by Ms AC about meeting at school where Father made strange, offensive and odd comments – in presence of her, wife, childrne including his wife being a beautiful flower that grew from a “pot of shit.”

NO

Catholic Education Subpoena Material

PAGES

Relevance for Submission

(38)

Incident reports 30 January 2020 to 2 March 2020

72-75

Smear campaign against the Mother, to the school;

Attempts to isolate Mother against School;

Attempts to prevent children from having a relationship with the Mother, including making false assertions

·           Page 72 – Father called the school to tell them that the AVO prevented the Mother from coming near X despite the AVO not containing such restraints

·           Page 74 – Father called the school to request that the Mother’s contact details be removed from the school system and expressed that he did not wish for the Mother to receive any documentation from the school.

X was not completely resistant to spending time with the Mother at this point.

Supports Mother’s assertion of the ongoing attempts she made to have a relationship with the children

·           Page 72 – It says “she said she was staying with Dad but that her Mum was trying to see her. She didn’t want to spend much time with Mum”

(39)

Incident reports 25 June 2020 to 3 May 2021

76-82

Attempts to prevent the Mother from having a relationship with the children

·           Pages 76-78 – Father refused to provide authority to the school to allow the Mother to have the children’s school reports etc. sent to her pursuant to the Orders dated 6 March 2020. This was in direct breach of the Orders requiring him to provide such authority. The documentation was never provided to the Mother because of the way the Orders were worded, and therefore interpreted by the school

Paranoia displayed by the children/extent of alienation by the Father

·           Page 80 to 81 - X reported to the teacher that her Mother may have sewn a microphone into her blazer so that the mother could record her.

Concerning/problematic behaviour by the children at school

·           Page 81 - X arriving late to class consistently

·           Page 81 – X produced some work in English that was concerning – she created a character profile that reflects a male figure who is controlling and wants to hurt other people. However, X denied that it was based on anyone.

·           Page 82 – X was extremely upset and was crying. No explanation as to why

NO

Dept of Education Subpoena Material

PAGES

Relevance for Submission

(40)

Letters re absence from School W 31 March 2021

83-86

Disproves Father’s assertion that children have been doing much better at school and thriving since Ms Tyrell left

(41)

Letters re absence from School W 29 March 2021

87-88

Disproves Father’s assertion that children have been doing much better at school and thriving since Ms Tyrell left

NO

Other Documents referred to in

Affidavit of Ms Tyrell sworn 8 April 2022

PAGES

Relevance for Submission

(42)

Email from Company AR dated 04.07.2019 (paragraph 79)

89

Weird/antisocial/ problematic behaviour

(43)

Interim Apprehended Domestic Violence Order dated 06.01.2020 (paragraph 122)

90-92

Did not include the children as the father asserted on multiple occasions and in evidence

(44)

Letter from AV Lawyers to Mr Tyrell dated 07.01.2020 (paragraph 210)

93-94

Supports Mother’s assertion of the ongoing attempts she made to have a relationship with the children by seeking agreement to spend time. Ignored by father although he had retained his current solicitor. Note father’s evidence that “Ms AW” was the solicitor who attended the police station with him the night the mother was served with an AVO and removed from the house.

(45)

Letter from AV Lawyers to Mr Tyrell dated 15.01.2020 (paragraph 210)

95-96

Supports Mother’s assertion of the ongoing attempts she made to have a relationship with the children by seeking to reach agreement to spend time.

(46)

Final Apprehended Domestic Violence Order dated 24.02.2020 (paragraph 209)

97-101

Did not include the children as the father asserted on multiple occasions and in evidence

(47)

Circle of Security Parenting Certificate dated 12.06.2020 (paragraph 199)

102

Mother’s attempts at improving herself and her parenting capabilities

(48)

Positive Parenting Programme Certificate dated 02.07.2020 (paragraph 199)

103

Mother’s attempts at improving herself and her parenting capabilities

(49)

Working with Strong Emotions Certificate dated 15.09.2020 (paragraph 199)

104

Mother’s attempts at improving herself and her parenting capabilities

(50)

Photos from Town J Property Clean Out 19 January 2016 (paragraph 252)

105-113

Supports Mother’s assertions that she and Mr Tyrells both undertook a significant amount of work at the Town J Property in readiness for sale

(51)

Letter from Mr AX (School Q School Principal) dated 12.02.2020

114

Supports Mother’s assertion that she made significant attempts to remove the children from the home schooling environment; and supports Mother’s parenting ability. Also supported the fidning that the mother was not violent, aggressive, angry. This is also supported by the XXN of her psychologist Mr T who has treated the mother over a significant period and has not seen the mother angry.

NO

Historical Title Searches

PAGES

Relevance for Submission

(52)

D Street, Suburb E,

115

See below

(53)

AY Street, Town J

116

Supports Wife’s case that this property was transferred pursuant to probate in 2017 (after bankruptcy proceedings) but the D Street, Suburb E Property was not transferred

(54)

AL Street, Suburb E

117

Supports Wife’s case that this property was transferred pursuant to probate in 2012 (but noting this was before bankruptcy proceedings) but the D Street, Suburb E Property was not transferred

(55)

AZ Street Town L

118

Supports Wife’s case that this property was transferred pursuant to probate in 2015 (after bankruptcy proceedings) but the D Street, Suburb E Property was not transferred

DCJ material produced on subpoena

PDF: “Subpeona Response TYRELL TYRELL”

(56)

Report …12

212-213

Unnamed caller. Suspect Mr Tyrell may have a brain injury (unconfirmed). Reports made by Z that “Mum’s actually the one who hits Dad..” “Caller thinks Mr Tyrell is telling this to the children.”

(57)

Report …86

192-194

Caller in Mr Tyrell. Detailed and extreme allegations of violence by mother against children and father – report made 8/1/20 – mother says is false

(58)

Report …70

169-170

report that the children had been badly ‘beating up’ by the mother, and this happened two weeks ago. Mother used to draw blood and claw them so hard.’ 16/1/20 – two weeks ago would have been around the time of separation – no allegation of the children being beaten was made to police at the time of separation (29/12/19) – mother says is false

(59)

Report …70

147-148

Caller recorded more details of historical extreme violence by mother including that “Reports would beat kids to the ground, ….would massage and bandage Ms Tyrells hands after she beat [them].

(60)

ASM …94

100-102

Mother’s report 13 July 2020 of her concerns about the father’s behaviour having being told he kissed X on the lips, of the privacy issues with the doors, comments on tampons.

Father interpreted this as being accused of being a child molestor.

Mother’s evidence is compelling as in XXN she reported what she had said accurately having not seen any record from the Department.

(61)

21 July follow up notes

62-63

children were all aware of how separation AND “has impacted their father Mr Tyrell and how he misses and loves their mother”. Caseworkers record being concerned about the children’s knowledge of the separation and have spoken to Father abut being mindful of what info he is sharing with the children.

Father told careworkers that he is not sharing too much and “is mindful of protecting children.”

Caseworkers are not sure of this, and feel like Father is not censoring the info and the children are carrying his sadness”

(62)

21 July follow up notes

45-47

Caseworker noted there were doors on bathrooms and bedrooms but some were “clear glass” – Father denied in XXN - then referred to frosting commitment.

Mr Tyrells room noted “high heels, wigs, hari pieces, porn videos – Mr Tyrell says belong to Ms Tyrell.

Agreement “put away pornographic clothes, put frosting or curtain on glass doors on bedrooms”

Z said shower with father last week – Mr Tyrell said 6 months ago.

All three kids kept diaries because requested by court – not true

NSW Police

(63)

NSW Police documents page 2/14

Flag 1

PAGE 2 – 9/1/20 CR supported in seeking contact with her children

(64)

NSW Police documents page 3/14

Flag 2

PAGE 3 – 6/1/20 – Explained AVO does not prevent D from being in location

(65)

NSW Police documents page 4/14

Flag 3

PAGE 4-5 – the 30/12/19 incident – she reported the 23/12 bank incident; the 29/12 incident youngest child in laundry, barged the def aside and elbowed her in the stomach with his right elbow…FR was accompanied by his solicitor – alleged tried to steal from “victims mother’s account to her own personal account…Police do not believe the version supplied by the defendant

(66)

NSW Police documents page 5/14

Flag 4

page 5 – joint account, money belonged to victims mother; victim controls access to $ not plausible, and $240,000.

The evidence supports C did have authority to operate the joint account, that he did cancel her access to money on 23.12.2019 and that he did not pay what he claimed for – and ceased making payments for it – resulting in repossession.

(67)

NSW Police documents page 6/14

Flag 5

PAGE 6 – 9/8/17 – known for stealing… Store AT and Store AU – this one was chemist..

GP notes – both for Husband and Wife

Various PDFs provided

(68)
BA Medical Clinic

Mr Tyrell’s medical file – 2 December 2019

PDF:

“MR TYRELL 1-100”

PAGE:

84/100

Struggling with relationship

Ms Tyrell unhappy

Has told Mr Tyrell she wants a divorce? she has a boyfriend – the opposite to Mr Tyrell, rich, physically aggressive

Mr Tyrell feels pushed away, no hugs, no sex, no discussions about anything

Yesterday, Ms Tyrell went away for the day with a boyfriend.

Feels pushed out of the relationship and not allwed to attend kids concerts etc, this has been longstanding.

(69)
BA Medical Clinic

Mr Tyrell’s medical file

5 December 2019

PDF:

“ MR TYRELL1-100”

PAGE:

85/100

Miserable

Not allowed to touch Ms Tyrell, but she is able to hug her boyfriend in front of Mr Tyrell

Mr Tyrell is continually being put down.

(70)
BA Medical Clinic

Mr Tyrell’s medical file

13 December 2019

PDF:

“MR TYRELL 1-100”

PAGE:

84/100

Still very upset

Upset about Ms Tyrell’s behaviour

Being pushed away from kids

Plan
Needs to look out for himself

Advised to call family court.

(71)
BA Medical Clinic

Mr Tyrell’s medical file 19 December 2019

PDF:

“MR TYRELL 1-100”

PAGE:

86/100

Situation is worsening

Still does not go inside with Ms Tyrell unless the kids are there.

Approached the family court but no counselling as yet

Has a friend of a friend, who is a lawyer offer to see him, at no charge.

(72)
BA Medical Clinic Medical practice

Wife’s medical file

2 December 2019

PDF:

“MS TYRELL 1-100”

PAGE:

66-67/100

Wife reports that she “does not want to continue the relationship”

(73)

BA Medical Clinic

Wife’s medical file

28 December 2019 – wife reports to the doctor – this is the day before the FV incident

PDF:

“MS TYRELL 1-100”

PAGE:

67-68/100

“Stressed + on Monday – went to bank to withdraw money Mr Tyrell started calling her a slut, whore, prostitute, X was with her. He has stopped her having access to account extremely embarrassed. He has removed the internal doors. He is vindictive and controlling. She says that Mr Tyrell is telling them lies, is running her down in front of the children, does not feel that any couple counselling is viable, as Mr Tyrell keeps telling her that she has no skills and no education, cant live with him like this, but has no where to go, says he keeps the kids up late, he is verbally abusive, but no physical abuse, does not want to uproot kids by looking at moving out F. does not want to leave”

(74)
BA Medical Clinic

Wife’s medical file

8 January 2020

PDF:

“MS TYRELL 1-100”

PAGE:

68/100

Records to her GP the events of 29.12.2019 consistent with her statement to police and her evidence –

Ms Tyrell was washing child in laundry, Mr Tyrell came in and wanted to wash him, elbowed her out of the way, AVO, no contact with children, Mr Tyrell has told court that she hits the children.

(75)

BA Medical Clinic

Wife’s medical file

23 June 2020 – GP writes support letter for housing

PDF:

“MS TYRELL 301-365”

PAGE:

46-47/65

Pressing for housing for Ms Tyrell. Includes “Ms Tyrell is in a particularly unpleasant relationship breakdown. There was physical abuse in the marriage, but this has been far overshadowed by the then, and ongoing, financial and emotional abuse. He has been and remains very controlling. This has extended to her car being repossessed, as it was being paid for by her husband apparently as part of the separation agreement. This remains one more episode of humiliation for Ms Tyrell”

CAC 103 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) TYRELL & TYRELL
BETWEEN:	MR TYRELL Applicant
MS TYRELL First Respondent
MS B TYRELL Second Respondent
INDEPENDENT CHILDREN'S LAWYER

File number(s):	CAC 103 of 2020
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	14 September 2022
Catchwords:	FAMILY LAW – Parenting and property applications – 25 year long marriage – where alleged incident involving the police occurred in December 2019 and Mother has not seen the children since – Father’s evidence was shambolic and not credible – evidence that children have clearly been informed about the litigation, despite Orders prohibiting this – reports of the Father’s inappropriate behaviour towards and around the children – concerning shortcomings in the Father’s parenting – allegations against the Mother not substantiated – Mother’s evidence was more measured and credible – parenting Orders made as proposed by the ICL and supported by the Mother for the youngest child to live with the Mother – but for the ages of the older children, the Court would likely Order them to change residence as well – substantial property pool containing marital home and joint bank account – marital home was owned by the second respondent Grandmother however has been in the Father’s name since 2015 due to a false statutory declaration – funds from joint bank account withdrawn right before proceedings commenced - Father and Grandmother claim the property is only in the Husband’s name fraudulently and not part of the property pool – finding that funds were removed for the purpose of ensuring they could not be reached by the Mother - the Grandmother and Father cannot benefit from their own wrong according to the maxim ex turpi causa non oritur action – finding the real property and funds are both assets or in the alternative financial resources for the purposes of the property pool –weight given to the Father for initial and ongoing financial contribution - Orders made for a 45/55 property division in the Husband’s favour - where potential breach of expert witness guidelines – where potential contempt and breach of s121 – Jones v Dunkel inferences.
Legislation:	Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) Family Law Act 1975 (Cth), ss. 60CA, 60CC(3)(a) – (m), 65DAA, 75(2), 79(2) & (4), 106B, 121 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 6.1
Cases cited:	AMS v AIF (1999) 199 CLR 160 Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387 Black & Kellner (1992) 15 Fam LR 343 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Byrnes v Kendle (2011) 243 CLR 253 Chang v Su (2002) 170 FLR 244; (2002) 29 Fam LR 406 Chapman v Chapman (2015) 51 Fam LR 176 Collu & Rinaldo [2010] FamCAFC 53 Dickons v Dickons (2014) 50 Fam LR 244 Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1 Fox v Percy (2003) 214 CLR 118 Godfrey & Saunders (2007) 208 FLR 287 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 Grundt v Great Boulder Proprietary Gold Mines Ltd (1938) 59 CLR 641 Hall v Hall (2016) 257 CLR 490 Hsiao v Fazarri (2020) 94 ALJR 961; (2020) 383 ALR 446; (2020) 61 Fam LR 465 Jones v Dunkel (1959) 101 CLR 298 In the Marriage of Kress (1976) 13 ALR 309 M v S (2008) 37 Fam LR 32 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC 93-375 AJO v GRO (2005) 33 Fam LR 134 Orr v Ford (1989) 167 CLR 316 Partington v Cade (No.2) (2009) 42 Fam LR 401 In the Marriage of Pierce (1998) 24 Fam LR 377 In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230 Valder & Saklani (2014) 251 CLR 505 Sigley v Evor (2011) 44 Fam LR 439 Stanford v Stanford (2012) 247 CLR 108 U v U (2002) 211 CLR 238 Vontek & Vontek [2017] FamCAFC 28 White and Tulloch v White (1995) 19 Fam LR 696 Yango Pastoral Company Pty Ltd v First Chicago Australia Limited (1978) 139 CLR 410 K.R Handley, Estoppel by Conduct and Election, (Second Edition) (London: Sweet & Maxwell, 2016)
Division:	Division 2 Family Law
Number of paragraphs:	327
Date of last submission/s:	28 July 2022
Date of hearing:	21 – 22 April 2022; 13 May 2022
Place:	Canberra
Counsel for the Applicant	Mr R Thomas
Solicitor for the Applicant	Falcon Legal Canberra
Counsel for the First Respondent	Ms R Curran
Solicitor for the First Respondent	Farrar Gesini Dunn
Solicitor for the Second Respondent	Fitzgerald Naylor Lawyers
Solicitor/Advocate as the Independent Children’s Lawyer	Mary Burgess

order made by:	JUDGE W J NEVILLE
DATE OF ORDER:	14 September 2022

Date	Event
1966	Mr Tyrell born (now aged 55)
1976	Ms Tyrell born Country AG (now aged 45)
1984	Mother comes to Australia aged about 8 yo
1993	Mother and Father meet; father invites mother to JW
1994	Mother joins JW
1994	Parents marry
Approx 1998/1999	Father locks mother out of house - Relates to Mr AP living with them – father suspicious. Mother goes to stay in Sydney with her family. Father asks her to make allegations against Mr AP.
2000	Mother’s brother, Mr AK, living with parties. Mother says father showed Mr AK porn.
Mid 2005	Mother says father pressured her into having an abortion
2005	Father says he starts drifting from the church
2006	X & Y born (now aged <16)
June/July 2006	Dispute over a car between father and his sister.
29 August 2007	Mother says father obtained extra scripts for benzos and opiods
2008/2009	Mother says father taking children to the “workshop”
2009	Renovations commence on family home
2009	Mother wants to take the twins to ‘preschool’for a break; father disagrees.
2010	Mother applies to home-school the children. Mother says she was solely responsible for the schooling
2010	Z born (now aged 11)
2011	Mother says father started sexually assaulting her
18 June 2012	X (aged 6) locked in car at AQ Shopping Centre. Police incident
2013	Father diagnosed with depression and anxiety – referred to psychologist
2014	Father claims mother’s anger escalating. Mother expressing a wish never to have had the children.
2011	Default judgement against mother and father for failure to pay >$37K to builders
July 2012	Father becomes bankrupt owing $74K
2014	Children commence attending formal schooling
2015	Father’s sister, Ms S, dies
End 2015	Mother explores enrolment at School Q; alleges father name calling during a tour of the school
2016	Mother stops attending church – she says at father’s pressure
?2016	Children start attending school:
8 August 2017	Police record father as suspect shop lifter
2018	Mother says father hit X leaving welt on her leg
August 2018	Father decides to enrol the boys in School AB; and wants X to attend School V
September/October 2018	Meeting at School AB to discuss enrolment
2018/2019	Mother alleges father stealing inc lizard, turtle
2019	Z and Y commence school at School AB; Z in year 4; Y in year 7. Z was skipping a year. X commenced year 7 at School V
2019	Father is friends with Mr M
Mid 2019	Y moved from School AB to School W where he still attends
4 July 2019	Mother receives an email from Company AR complaining about the father’s behaviour towards other people.
October 2019	Mother has an affair with Mr M. Father alleges mother openly boasted about sex with Mr M. Father claims mother took the children to see a house and showed them their room
December 2019	Messages from Y to mother saying he loves her
23 December 2019	Father alleges mother was at the bank trying to withdraw Ms B Tyrell’s money. He claims mother tried to hit him at the bank, and X stopped her. AVO application page 155 father’s affidavit – says says father ripped cheque book from mother and called her a thief, slut, whore; that father elbowed mother in stomach; mother went to police station Police did not believe the mother – sought AVO to protect father
29 December 2019 – 30 December 2019	Father says mother returned from a day out with Mr M and was very angry & demanding the father leave. Mother goes to police station. Father is arrested in front of the children. Later released
without charge. Police take AVO against mother after interviewing father – requiring mother to leave the house. This marks the separation of the parents.
December 2019 – January 2020	Father says the mother lived with Mr M; mother says she stayed with Mr M’s mother for about 2 weeks (or a few days) then goes to a Refuge.
6 January 2020	AVO matter before the Court. Restriction on mother being at the family home removed from the order. Mother says she went to see the children but unable to gain entry to house – a number of times 7-14 January
Early January 2020	Mother starts attending church. Is encourage to confess adultery. Church support encourages her to forget about the children Mother says churchgoers tell her the father is getting the children to tell elders mother had an affair
21 January 2020	Father files initiating application in FCC
29 January 2020	Father takes the children to Ms G to obtain a wishes report for Court. Mother not informed or involved.
10 February 2020	First return date in FCC. Consent orders providing for no time with mother.
11 February 2020	Ms G first report
24 February 2020	AVO made final for 6 months – para 1 only
6 March 2020	Consent Orders for father to have SPR, children to attend therapy; liberty for children to contact mother
March 2020	Children commence therapy with Ms D
March 2020	Father claims centrelink benefits for the children
April 2020	Mother says father told her he recorded her with Mr M and involved the children
August 2020	Mother says neighbour claimed to have been told she was dead
July 2020	Mother starts attending psychologist Mr T
31 August 2020	Second Ms G report
September 2020	Ms AS organises a meeting of the parents
17 September 2020	Mother attends meeting with JW elders
18 September 2020	Mother ‘disfellowshipped’ & shunned from JW
30 October 2020	FDRC at Legal Aid. Matter not resolved. JW support attends with mother (Ms AS)
October 2020 – February 2021	Mother says she was told the father and children were attending JW meetings and said mother had abandoned the children
11 November 2020	Interim orders for inter alia, supervised time for Z; mother to provide her contact details for children; mother at liberty to send things to the children.
14 November 2020	Father says mother sent him an SMS saying she was ashamed of what she had done and that the father was ‘respectful, gentle, and caring’
17 November 2020	Mother and father attend joint session with Ms AS
12 March 2021	Ms D advises Z spending time with the mother would be detrimental to his well-being;
16 March 2021	Father files 2 x reports from Ms G
14 May 2021	Parents divorce
June 2021	Mother tries to commence family therapy
16 December 2021	Release of family report by SC
11 February 2022	Orders for family therapy to commence
9 March 2022	FGD seeks report from mother’s treating psychologist
18 March 2022	Release of supplementary family report
21 March 2022	Father says mother provided gifts to the children via the therapist and that this was the first time she had done so
28 March 2022	Report by Mr T – mother’s treating psychologist

NO	AFSA Subpoena #10 Material	PAGES	Relevance for Submission
(1)	Statement of Affairs dated 19.07.2012	1 - 12	Ownership of D Street, Suburb E Property · Page 40 – lists debt to builder as a liability noting builder was engaged for renovations on D Street, Suburb E Property, but does not disclose D Street, Suburb E property as asset
(2)	Letter from AFSA to Mr Tyrell dated 13.07.2015	13 - 17	Confirmation of date of annulment of bankruptcy
(3)	Declaration of Intention to Present Debtor's petition dated 28.06.2012	18 - 20	Ownership of D Street, Suburb E Property · Page 20 – builder listed as creditor but does not disclose D Street, Suburb E Property as asset
(4)	Letter from AFSA to Mr Tyrell dated 15.07.2013	21 - 22	Ownership of D Street, Suburb E Property; Credibility · Page 21 – AFSA questioned why the D Street, Suburb E Property wasn’t disclosed as an asset when the debt for the renovations on the property was listed as a debt
(5)	Email from KJB to ITSA dated 01.08.2013	23	Ownership of D Street, Suburb E Property; Credibility · Page 23 – Admission of signing false statutory declaration; note about how the Husband borrowed money from the bank for work on the property as “owner” of the property; signed a contract as owner of the property.
(6)	Letter from AFSA to Mr Tyrell dated 09.10.2013	24 - 25
(7)	Letter from Mr AM to Trustee in Bankruptcy dated 24.06.2013	26	Ownership of D Street, Suburb E Property; Ms B Tyrell’s knowledge of property owned in Husband’s name; Ms B Tyrell’s failure to remedy ownership issue despite representations that the property is rightfully hers; · Page 26 – Ms B Tyrell’s lawyer says “I am unsure as to how the property was transferred into Mr Tyrell’s name but, once we confirm that it should property be in Ms B Tyrell’s name, that transfer will be reversed.”
(8)	Declaration of Intention dated 19.07.2012	27
(9)	Timeline of events re Property	28 - 29	This chronology provides timeline re the varying and conflicting representations he made to AFSA
(10)	Grant of Probate [Mr K] dated 12.09.2011	30	Ownership of D Street, Suburb E Property · Probate granted on 12 September 2011, yet no steps taken to transfer property to Ms B Tyrell’s name
(11)	Change of Name dated 15.07.2010	31	Knowledge of ownership of D Street, Suburb E Property; Credibility – Contradictory representations to AFSA to suit his case

NO	CBA Subpoena #8 Material	PAGES	Relevance for Submission
(12)	Low Documentation Loan Declaration dated 13.5.2010	32	Ownership of D Street, Suburb E Property; Representations about the value of his assets · Page 32 – Lists total assets as $1.3mil and total liabilities as $500
(13)	Change of Name dated 15.7.2010	33	Knowledge of ownership of D Street, Suburb E Property; Credibility – Contradictory representations to AFSA to suit his case
(14)	Application Wealth Package dated 15.7.2010	34 - 35	Knowledge of Husband’s joint interest with Ms B Tyrell in the CBA …48 account
(15)	Loan Account Authority Borrower dated 15.7.2010	36 - 38	Knowledge of Husband’s joint interest with Ms B Tyrell in the CBA …48 account; Usage of CBA …48 account as parties’ joint account · Page 37 – authorises direct debits for payment of loan from …48 account
(16)	CBA Loan Application dated 22.2.2011	39 - 45	Knowledge of Husband’s joint interest with Ms B Tyrell in the CBA …48 account; Usage of CBA …48 account as parties’ joint account · Page 40 – Husband lists CBA …48 account as the repayment method for the payment of the loan. Ownership of D Street, Suburb E Property, D(2) Street, Suburb E Property, Town L Property · Page 42 – Husband lists all of the above properties as properties owned by him as at the date of the Application.

NO	CBA Subpoena #13	PAGES	Relevance for Submission
(17)	Cancelled Authority to Operate (Third Party) dated 30.06.2015	46 - 47	Prior to cancellation Wife was an authorised operator on the account; Knowledge of Husband’s joint interest in …48 account; Usage of CBA …48 account as parties’ joint account
(18)	Request to Cancel Authority to Operate (Third Party) dated 23.12.2019	48 - 50	Same as above – usage continued until 23 December 2019 when Ms Tyrell’s authority was removed
(19)	Withdrawal from x…48 ($500,000) on 23.12.2019	51 - 52	Deliberate transfer of funds from …48 account to quarantine the funds, where documents above show that the Husband was a joint account holder. No evidence of wife attempting to remove $500,000 – and bank manager was not called (Jones v Dunkel) Wife’s evidence was her attempt to withdraw $50,000.
(20)	Letter from Mr F to CBA – Property Transfer dated 20.05.2020	53 - 54	Knowledge of existence of the false statutory declaration – requests that CBA provide them with a copy of the Change of Name document.
(21)	Customer compliment overview by Husband dated 23.12.2019	55	Husband is recorded as referring to his wife as estranged.

NO	Section 69ZW Material	PAGES	Relevance for Submission
(23)	Incident report dated 08.08.2017	59	Stealing– noted he was identified and known to steal from that shopping centre – consistent with wife’s evidence. PAGE 6 – Of NSW police notes from 09.08.2017 – “known for stealing… Store AT and Store AU” – this report was from chemist.
(24)	Incident report dated 04.03.2017	59	Issue with neighbour while renovation/clearing and making ready for sale at Town J property – antisocial type behaviour
(25)	Incident report dated 17.02.2017	60	Issue with neighbour while renovation/clearing and making ready for sale at Town J property – antisocial type behaviour
(26)	Incident report dated 25.01.2017	60	Issue with neighbour while renovation/clearing and making ready for sale at Town J property – antisocial type behaviour
(27)	Incident report dated 25.01.2017	61	Issue with neighbour while renovation/clearing and making ready for sale at Town J property – antisocial type behaviour
(28)	Incident report dated 01.12.2016	61	Further unusual behaviour/Issue with neighbour · Father made a report claiming that the neighbour had fired a gunshot at his house targeting the family. Police couldn’t find any shell or remnants of a round, police believed that the Father may have caused damage to the window.
(29)	Incident report dated 18.06.2012	62	Husband’s behaviour Left daughter who was 6 years old at the time, locked in a car in an underground car park. When confronted by police, he was aggressive and belligerent to police officers, and started mocking the police officers.

NO	School AB Subpoena Material	PAGES	Relevance for Submission
(30)	Pastoral Care Incident dated 25 June 2019	63	Disturbing behaviour; problematic engagement with school · Page 63 - Staff called to speak to him about Y’s grade. Father strayed from the topic and started talking about his “religious background, NAZIs and the rape of his mother’s twin sister at the end/during the war.”
(31)	Incident report dated 13 February 2019	71	Disturbing, inappropriate and sexualised discussion and unusual engagement with the school. Long file note about meeting at school where Father made strange, offensive and odd comments. These comments included discussion anal sex with the boys and the discussion with School AB boys about his then 12 year old daughter. Teachers found the conduct disturbing.
(32)	Pastoral Care Incident dated 19 November 2020	64	Smear campaign against the Mother, to the school; attempts to isolate Mother against School – although this was 11 months since the mother had seen the childrne at all · Page 64 – “Of the 10 minute conversation, Mr Tyrell spent around 8 minutes of it talking about his ex wife and the disruption that she is causing to him and his family”
(33)	Pastoral Care Incident dated 27 November 2020	65	Antisocial behaviour · Page 65 – Incident where allegation was made against the Father for taking photos of two random boys at the school. Security footage appeared to support the boys’ version of events. But it was denied by the Father.
(34)	Emails between school staff 26 to 28 May 2020	66-67	Addressed Father’s irrational belief and assertions that the children are gifted and Z ought to be in the year above him
(35)	Emails between school staff 26 November 2020	68	Disproves Father’s assertion that children have been doing much better at school and thriving since Ms Tyrell left This together with the evidence of school records and the XXN of father shows he believes and maintains his own narrative in spite of clear contrary evidence.
(36)	Emails between school staff 31 March to 19 April 2021	69-70	Disproves Father’s assertion that children have been doing much better at school and thriving since Ms Tyrell left
(37)	Incident report dated 13 February 2019	71	Highlights antisocial and problematic behaviour with engagement with the school. Long file note by Ms AC about meeting at school where Father made strange, offensive and odd comments – in presence of her, wife, childrne including his wife being a beautiful flower that grew from a “pot of shit.”

NO	Dept of Education Subpoena Material	PAGES	Relevance for Submission
(40)	Letters re absence from School W 31 March 2021	83-86	Disproves Father’s assertion that children have been doing much better at school and thriving since Ms Tyrell left
(41)	Letters re absence from School W 29 March 2021	87-88	Disproves Father’s assertion that children have been doing much better at school and thriving since Ms Tyrell left

NO	Other Documents referred to in Affidavit of Ms Tyrell sworn 8 April 2022	PAGES	Relevance for Submission
(42)	Email from Company AR dated 04.07.2019 (paragraph 79)	89	Weird/antisocial/ problematic behaviour
(43)	Interim Apprehended Domestic Violence Order dated 06.01.2020 (paragraph 122)	90-92	Did not include the children as the father asserted on multiple occasions and in evidence
(44)	Letter from AV Lawyers to Mr Tyrell dated 07.01.2020 (paragraph 210)	93-94	Supports Mother’s assertion of the ongoing attempts she made to have a relationship with the children by seeking agreement to spend time. Ignored by father although he had retained his current solicitor. Note father’s evidence that “Ms AW” was the solicitor who attended the police station with him the night the mother was served with an AVO and removed from the house.
(45)	Letter from AV Lawyers to Mr Tyrell dated 15.01.2020 (paragraph 210)	95-96	Supports Mother’s assertion of the ongoing attempts she made to have a relationship with the children by seeking to reach agreement to spend time.
(46)	Final Apprehended Domestic Violence Order dated 24.02.2020 (paragraph 209)	97-101	Did not include the children as the father asserted on multiple occasions and in evidence
(47)	Circle of Security Parenting Certificate dated 12.06.2020 (paragraph 199)	102	Mother’s attempts at improving herself and her parenting capabilities
(48)	Positive Parenting Programme Certificate dated 02.07.2020 (paragraph 199)	103	Mother’s attempts at improving herself and her parenting capabilities
(49)	Working with Strong Emotions Certificate dated 15.09.2020 (paragraph 199)	104	Mother’s attempts at improving herself and her parenting capabilities
(50)	Photos from Town J Property Clean Out 19 January 2016 (paragraph 252)	105-113	Supports Mother’s assertions that she and Mr Tyrells both undertook a significant amount of work at the Town J Property in readiness for sale
(51)	Letter from Mr AX (School Q School Principal) dated 12.02.2020	114	Supports Mother’s assertion that she made significant attempts to remove the children from the home schooling environment; and supports Mother’s parenting ability. Also supported the fidning that the mother was not violent, aggressive, angry. This is also supported by the XXN of her psychologist Mr T who has treated the mother over a significant period and has not seen the mother angry.

NO	Historical Title Searches	PAGES	Relevance for Submission
(52)	D Street, Suburb E,	115	See below
(53)	AY Street, Town J	116	Supports Wife’s case that this property was transferred pursuant to probate in 2017 (after bankruptcy proceedings) but the D Street, Suburb E Property was not transferred
(54)	AL Street, Suburb E	117	Supports Wife’s case that this property was transferred pursuant to probate in 2012 (but noting this was before bankruptcy proceedings) but the D Street, Suburb E Property was not transferred
(55)	AZ Street Town L	118	Supports Wife’s case that this property was transferred pursuant to probate in 2015 (after bankruptcy proceedings) but the D Street, Suburb E Property was not transferred

PDF: “Subpeona Response TYRELL TYRELL”
(56)	Report …12	212-213	Unnamed caller. Suspect Mr Tyrell may have a brain injury (unconfirmed). Reports made by Z that “Mum’s actually the one who hits Dad..” “Caller thinks Mr Tyrell is telling this to the children.”
(57)	Report …86	192-194	Caller in Mr Tyrell. Detailed and extreme allegations of violence by mother against children and father – report made 8/1/20 – mother says is false
(58)	Report …70	169-170	report that the children had been badly ‘beating up’ by the mother, and this happened two weeks ago. Mother used to draw blood and claw them so hard.’ 16/1/20 – two weeks ago would have been around the time of separation – no allegation of the children being beaten was made to police at the time of separation (29/12/19) – mother says is false
(59)	Report …70	147-148	Caller recorded more details of historical extreme violence by mother including that “Reports would beat kids to the ground, ….would massage and bandage Ms Tyrells hands after she beat [them].
(60)	ASM …94	100-102	Mother’s report 13 July 2020 of her concerns about the father’s behaviour having being told he kissed X on the lips, of the privacy issues with the doors, comments on tampons. Father interpreted this as being accused of being a child molestor. Mother’s evidence is compelling as in XXN she reported what she had said accurately having not seen any record from the Department.
(61)	21 July follow up notes	62-63	children were all aware of how separation AND “has impacted their father Mr Tyrell and how he misses and loves their mother”. Caseworkers record being concerned about the children’s knowledge of the separation and have spoken to Father abut being mindful of what info he is sharing with the children. Father told careworkers that he is not sharing too much and “is mindful of protecting children.” Caseworkers are not sure of this, and feel like Father is not censoring the info and the children are carrying his sadness”
(62)	21 July follow up notes	45-47	Caseworker noted there were doors on bathrooms and bedrooms but some were “clear glass” – Father denied in XXN - then referred to frosting commitment. Mr Tyrells room noted “high heels, wigs, hari pieces, porn videos – Mr Tyrell says belong to Ms Tyrell. Agreement “put away pornographic clothes, put frosting or curtain on glass doors on bedrooms” Z said shower with father last week – Mr Tyrell said 6 months ago. All three kids kept diaries because requested by court – not true

(63)	NSW Police documents page 2/14	Flag 1	PAGE 2 – 9/1/20 CR supported in seeking contact with her children
(64)	NSW Police documents page 3/14	Flag 2	PAGE 3 – 6/1/20 – Explained AVO does not prevent D from being in location
(65)	NSW Police documents page 4/14	Flag 3	PAGE 4-5 – the 30/12/19 incident – she reported the 23/12 bank incident; the 29/12 incident youngest child in laundry, barged the def aside and elbowed her in the stomach with his right elbow…FR was accompanied by his solicitor – alleged tried to steal from “victims mother’s account to her own personal account…Police do not believe the version supplied by the defendant
(66)	NSW Police documents page 5/14	Flag 4	page 5 – joint account, money belonged to victims mother; victim controls access to $ not plausible, and $240,000. The evidence supports C did have authority to operate the joint account, that he did cancel her access to money on 23.12.2019 and that he did not pay what he claimed for – and ceased making payments for it – resulting in repossession.
(67)	NSW Police documents page 6/14	Flag 5	PAGE 6 – 9/8/17 – known for stealing… Store AT and Store AU – this one was chemist..