Wolfe & Varni - [2022] FedCFamC2F 937

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wolfe & Varni [2022] FedCFamC2F 937

File number(s): SYC 7645 of 2013

Judgment of: JUDGE MORLEY

Date of judgment: 15 July 2022

Catchwords: FAMILY LAW – parenting – where Mother seeks no time and no communication between child and Father – where Father seeks time in line with previous parenting agreement made between the parties – family violence – assessment of unacceptable risk – not in the child’s best interests to spend time with or communicate directly with her father – costs

Legislation:
Family Law Act 1975 (Cth) – sections 4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAB, 68B, 68C, 69R, 69Q, 69S, 69VA, 117

Crimes (Sentencing Procedure) Act 1999 (NSW)

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

Cases cited:
A & A & The Child Representative [1998] FamCA 25

Darley & Darley (No 4) [2021] FamCAFC 54

Grella & Jamieson [2017] FamCAFC 21

Harridge and Anor & Harridge and Anor [2010] FamCA 445

Johnson & Page [2007] FamCA 1235

Keskin & Keskin [2019] FamCAFC 236

Latoudis v Casey (1990) 170 CLR 534

M v M (1988) 166 CLR 69

Medlon and Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664

Napier & Hepburn [2006] FamCA 1316

Penfold v Penfold (1980) 144 CLR 311

Sadasivam & Seshan [2019] FamCAFC 76

Sfakianakis v Sfakianakis [2019] FamCAFC 54; 59 Fam LR 419

W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 284

Date of last submissions: 8 February 2021

Date of hearing: 26, 27, 28 August and 8 February 2021

Place: Sydney

Counsel for the Applicant: Mr Campton of Senior Counsel

Solicitor for the Applicant: Swaab Attorneys

Counsel for the Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Mr Sperling

Solicitor for the Independent Children's Lawyer: Clayhills Escobar Solicitors
ORDERS

SYC 7645 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WOLFE

Applicant

AND:
MR VARNI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

15 JULY 2022

THE COURT ORDERS:
1.That pursuant to section 69VA of the Family Law Act 1975 (Cth), the Court declares that Mr Varni born in 1986 is the father of the child X born in 2012.
2.That the orders of 31 December 2013 are discharged.
3.That the mother Ms Wolfe (‘the Mother’) has sole parental responsibility for the child X born in 2012 (‘the child’).
4.That the child live with the Mother.
5.That the child spend no time with the Father Mr Varni (‘the Father’).
6.That the Mother is to do all acts and things necessary to provide to the Father, at a postal address provided by him, a photograph of the child one month prior to Christmas and a mid-year photograph and keep him advised as to the child’s progress at school. Notwithstanding this Order, the Mother is not be required to identify the child’s school or residential address.
7.That the Father is be permitted to forward cards and gifts to the child for Easter, her birthday and Christmas each year, such cards and gifts to be forwarded to a postal address provided by the Mother.
8.That pursuant to section 68B of the Family Law Act 1975 (Cth), and until the child X born in 2012 is 18 years of age, the Father Mr Varni born in 1986 is restrained by injunction from approaching or attending or contacting the child’s school, currently being B School, C Street, Suburb B, and any other school as the child may attend from time to time, and any other place that the child attends for sport or extra-curricular activities, and this order is an injunction for the personal protection of the Mother Ms Wolfe born in 1986 and the child X born in 2012 for the purposes of section 68C of the Family Law Act 1975 (Cth).
9.That pursuant to section 68B of the Family Law Act 1975 (Cth), and until the child X born in 2012 is 18 years of age, the Father Mr Varni born in 1986 is restrained by injunction from approaching the Mother or the child and shall not harass and/or intimidate the Mother Ms Wolfe born in 1986 or any member of the Mother’s household, and this order is an injunction for the personal protection of the Mother Ms Wolfe born in 1986 and the child X born in 2012 for the purposes of section 68C of the Family Law Act 1975 (Cth).
10.That pursuant to section 11 of the Passport Act 2005 (Cth), the Mother is authorised to do all acts and things necessary to apply for and maintain and keep updated a current Australian passport for the child without the consent of the Father.
11.That the Mother is permitted to travel with the child outside the Commonwealth of Australia without the consent of the Father.
12.That the Mother is to retain possession of the child’s passport until the child is 18 years of age.

Costs
13.That the Father pay to the Mother the sum of $8,250.00 being one half of the fees paid to Dr D for preparation of his report by no later than 4:00PM on 5 August 2022.
14.That the Father pay the Mother’s costs of and incidental to the listing on 4 March 2019 as agreed or as assessed by no later than 21 days from the date of agreement or completion of the assessment.

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 Wolfe & Varni has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
INTRODUCTION

A final hearing of parenting proceedings between the Applicant Mother, Ms Wolfe (‘the Mother’), and the Respondent Father, Mr Varni (‘the Father’), took place on 26 to 28 August 2019 and 8 February 2021. The gap between the hearing days in August 2019 and conclusion of the hearing in February 2021 was in consequence of the COVID-19 pandemic’s effect on being able to conduct hearings in person in the courtroom, and as the hearing had begun in person it was in the interests of justice to conclude as it had begun.
The parents met and commenced a relationship in 2012. They commenced their cohabitation in 2012 and separated on a final basis on 12 November 2013. At the end of the hearing both parents were 34 years of age.
There is one child of the relationship, X, born in 2012 (‘the child’). The child was 11 months old when the parties separated and was eight years of age when the final hearing concluded.
The Father was not re-partnered at the time of the hearing, and lived and worked as a tradesman in Town E on the New South Wales Region F. The Mother has re-partnered with Mr G and they have a child, H, born in 2018. The Mother’s place of residence and place of work as a casual tradesperson was not disclosed at hearing.
The Mother was represented by Mr Campton of Senior Counsel and the Father was self-represented. The Independent Child’s Lawyer, Ms Escobar was appointed by an order made on 17 May 2018 and was represented by Mr Sperling of Counsel.
On the first day of the final hearing two preliminary issues had to be determined before the hearing proper of the parenting proceedings could commence:
(a)An issue as to the Father’s paternity of X; and
(b)A hearing of the Application – Contravention filed by the Father on 9 January 2018.
On 4 March 2019, the Father had raised the issue of his paternity of X before Judge Harper (as his Honour then was) and an order was made by consent for DNA parentage testing to be conducted at the Father’s expense. The matter had been set down for final hearing for three days from 19 March 2019, but those dates were vacated and the matter was set down for final hearing from 26 to 28 August 2019.
Parentage testing was undertaken pursuant to the order, and on the first day of the hearing the parentage testing results report from ‘Company J’ was tendered into evidence on behalf of the Mother and marked Exhibit A2.
I asked the Father if he would consent to the Court making a declaration as to paternity and he gave his consent.[1]
[1] Transcript 26 August 2019, page 13.
The evidence in Exhibit A2, together with the presumption of parentage arising from:
(a)Cohabitation under section 69Q of the Family Law Act 1975 (Cth) (“the Act”);
(b)The registration of birth under section 69R of the Act; and
(c)A finding of the Court inherent in the orders of 31 December 2013 under section 69S of the Act,
would justify the making of a declaration of parentage naming the Father as the natural father of X even without the Father’s consent. I will make the declaration with the final orders at the end of these Reasons.
Before commencement of the parenting issues hearing proper, I conducted a hearing of the Father’s Application – Contravention filed 9 January 2018 and delivered a judgement. I made an order dismissing the Application – Contravention.
THE PROCEEDINGS
On 31 December 2013 final orders were made by consent between the parties providing that parents have equal shared parental responsibility for X, that X live with her Mother and that she spend time with her Father on a graduating basis so that by May of the year she commenced school she was to spend time with her Father:
(a)During school term each alternate week from after school Friday until start of school on Monday;
(b)Each other alternate week from the end of school on Thursday until 8:00PM that evening;
(c)For half of the school holiday; and
(d)On special occasions such as Easter, Christmas, Father’s Day and her Father’s birthday.
A final order provided that both parents could communicate with X by telephone at any reasonable time when she was in the care of the other parent. Other final orders provided for the sharing of X’s medical and education information between the parents. Changeovers were to occur at the ‘K Park’ at Suburb L, or on the Father’s request, from his premises in City M at the end of his time with X.
A notation was included that the parents agreed that X would attend a Catholic primary school provided the Father paid the school fees, with the parties to share the costs of books, uniforms, excursions and extra-curricular activities.
The history of the performance of those final orders made in December 2013 is set out hereunder when the parties’ evidence is reviewed.
These proceedings were commenced by the Father filing an Application – Contravention and his affidavit in support on 9 January 2018. That is the application that was heard and dismissed at the start of the final hearing.
On 8 May 2018 the Mother filed an Initiating Application in which she sought orders vacating the 31 December 2013 final orders, that she have sole parental responsibility for X, that X live with her and that the “Father shall spend no time with the child”. She sought an order that the Father be permitted to communicate with X by telephone each Wednesday between 6:30PM and 7:00PM with the Mother permitted to terminate the call should she consider the content of the Father’s conversation with the child not to be appropriate. Further orders sought provided that:
(a)The Mother provide to the Father copies of the child’s school reports and school photographs;
(b)The Mother be solely responsible for obtaining an Australian passport for the child, to be retained by the Mother;
(c)The Mother be permitted to travel with the child outside the Commonwealth of Australia without the consent of the Father; and
(d)The Father be restrained from approaching attending or contacting the child’s school.
The Mother’s application sought interim orders for the appointment of an Independent Child’s Lawyer and to the appointment of a single expert witness to prepare an Expert Report for the assistance of the Court, at the joint expense of the parties.
When the matter came before Judge Harper on 17 May 2018, orders were made appointing an Independent Child’s Lawyer and for the Father to file his Response. Orders were made restraining the Father from approaching or attending at the child’s school other than to seek information in relation to the child up until 4:00PM on 30 July 2018, and for the Mother to authorise the school to provide the Father with information about X. An order was made for the Father to have telephone communication or Skype communication with X each Monday and Wednesday between 6:30PM and 7:00PM, with the Mother to initiate a call to the Father for that purpose – this telephone communication order was varied by a further order on 4 March 2019 altering the times on Mondays and Wednesdays to between 5:00PM and 5:45PM.
On 30 July 2018 an order was made appointing the child, family and adult psychiatrist Dr D as a single expert witness to prepare an expert’s report for the assistance of the Court. On 27 September 2018 the matter was set down for a final hearing from 19 to 21 March 2019 with a Compliance Check on 4 March 2019. An order releasing the expert’s report prepared by Dr D dated 25 September 2018 was made on 23 November 2018.
At the Compliance Check on 4 March 2019, the Father raised the issue of his paternity of X and an order was made by consent for DNA parentage testing with the Father to pay the costs and the hearing starting on 19 March 2019 was vacated. The Mother’s costs of the day were reserved (and pressed at the final hearing). The matter was set down for final hearing from 26 to 28 August 2019, with trial affidavits to be filed by both parents by 28 June 2019.
The final defended hearing commenced on 26 August 2019 and continued on 27 and 28 August 2019 and was then stood over part-heard to 3 April 2020, that date being vacated in March 2020 due to the COVID-19 pandemic and the matter stood over for mention to 14 August 2020. On that day, the matter was listed for further hearing on 8 February 2021 and an order was made for the Father to pay into the trust account of Clayhills Escobar Solicitors, for the Independent Child’s Lawyer, by 13 October 2020 such sum of money as he was notified by the Independent Child’s Lawyer as was required to be paid in advance to Dr D for his fees on attending for cross-examination on 8 February 2021. The order provided that if the Father did not comply with such order Dr D would not be attending the hearing for cross-examination. A notation was made that the Father required Dr D for cross examination, and that the Mother and the Independent Child’s Lawyer did not.
When the matter was adjourned part heard on 28 August 2019, the following orders were made following an ex tempore judgment:
1.Pending further order, orders 7, 8, 9, 10, 15.3, 16 and 17 of the orders made on 31 December 2013 are suspended.
2.The Independent Child’s Lawyer make enquiry of the Single Court Expert, [Dr D], as to his estimate of his fees for perusing additional materials to be provided to him as specified in these orders, in relation to the preparation of an addendum to his Report consequent upon his consideration of further materials provided under these orders, and in relation to his attendance at Court for cross-examination for one day on 3 April 2020.
3.Upon receipt by the Independent Child’s Lawyer of the estimate of fees from [Dr D], the Independent Child’s Lawyer, within 5 working days thereafter, is to provide that estimate to the parties.
4.Within 30 days after receipt by the Respondent father of the estimate of [Dr D]’s further fees from the Independent Child’s Lawyer, the Respondent father pay in to the trust account of the Independent Child’s Lawyer, a sum equal to the estimate given by [Dr D] for his further fees.
5.The Independent Child’s Lawyer be at liberty to apply the funds paid in to her trust account by the Respondent father towards any fees required by [Dr D] before his attendance at Court for cross-examination on 3 April 2020.
6.Grant leave to the Applicant mother to make an oral application today that the Respondent father pay the Applicant mother’s costs in relation to the hearing of the Application Contravention filed by the Respondent father on 9 January 2018, and stand that matter over for consideration on the next occasion.
7.Grant leave to the Applicant mother to make an oral application today that the Respondent father pay the Applicant mother’s costs of and incidental to the proceedings before the Court on 4 March 2019 relating to the issue of parentage testing, that matter to be determined on the next occasion.
8.Direct that the Independent Children’s Lawyer provide to [Dr D] within 14 days, copies of:
a.        All of the exhibits entered in the matter so far;
b.        Copies of the parties trial affidavits being:
i.        The affidavit of the mother sworn 18 February 2019;
ii.        The affidavit of the father sworn 5 July 2019; and
iii.       The affidavit of [Mr G] sworn 17 February 2019,
for consideration by [Dr D] in preparation for the next occasion.
9.Direct that at 10:00am on 3 April 2020, the Respondent father produce to the legal representatives for the Applicant mother, in answer to the calls made during the hearing to date, the copy held by him of [Dr D]’s Report dated 25 September 2018, and left by him in [Town E] during the hearing to date, and referred to him during his evidence in cross-examination; and his statement or report from the Child Support Agency in relation to the current arrears owed by him of child support payable by him for [X], received by him within the last few weeks, as referred to by him in his evidence in cross-examination.
10.The matter is adjourned part heard to 10:00am on 3 April 2020.
11.Grant leave to the Independent Child’s Lawyer to relist the matter before the Court on the giving of 5 days notice to the Court, and to the parties, as to the matters in relation to which the relisting is made.
12.Up to and including the making of final orders in this matter, and following delivery of judgment, the Respondent father is restrained from approaching or attending the school of the child [X], born [2012], being [B School, B Street, Suburb C].
When the matter proceeded on day four of the final hearing on 8 February 2021, the Court was notified that the Father had not complied with the order to pay monies into the Independent Child’s Lawyer’s solicitors’ trust account and that accordingly, Dr D would not be attending for cross-examination. On that final day of the hearing, the Father made an application to adjourn the final hearing to enable him to assemble further evidence, asserting that he had had difficulties in that regard over “the last 12 months”. The application for adjournment was opposed by Senior Counsel for the Mother and by Counsel for the Independent Child’s Lawyer. I heard the verbal application, delivered an ex-tempore judgement and dismissed the application.
Also at the commencement of the final day of the hearing, the Father asserted that he had filed subpoenas to produce with the Court for issue to NSW Health for the Mother’s medical records and NSW Police for any criminal records regarding the Mother’s partner, Mr G. It transpired that no such subpoenas had been filed with the Court.

The hearing concluded after oral submissions on 8 February 2021 and judgement was reserved.
THE ORDERS SOUGHT
The orders sought by the Mother were set out in her Senior Counsel’s case outline document as follows:
1.That the Contravention filed by the father on 9 January 2018, be dismissed.
2.That the Orders dated 31 December 2013 proceeding number SYC7645/2013 be discharged.
3.That the mother shall have sole parental responsibility for the child, [X], born [2012] (“the child”).
4.That the child shall live with the mother.
5.That there be no order as to time to be spent by father with the child.
6.That there be no order as to communication between the father and the child save as to identified in orders 7 & 8 hereof, including contacting the child by telephone, email or any form of social media, or requesting any other person to contact or communicate with the child on his behalf.
7.That the mother shall do all acts and things necessary to provide to the father, at a postal address provided by him, a photograph of the child one month prior to Christmas and a mid-year photograph and shall keep him advised as to the child’s progress at school. Notwithstanding this Order, the mother shall not be required to identify the child’s school or residential address.
8.That the father shall be permitted to forward cards and gifts to the child for Easter, her birthday and Christmas each year, such cards and gifts to be forwarded to a postal address provided by the mother.
9.That the father is restrained and injuncted from approaching or attending or contacting the child’s school, currently being [B School C Street, Suburb B], and any other school as the child may attend from time to time, and any other place that the child attends for sport or extra curricular activities.
10.That the father be restrained from and shall not approach the mother or the child and shall not harass and/or intimidate the mother or any members of the mother’s household.
11.That pursuant to Section 11 of the Passport Act 2005, the mother shall be authorised to do all acts and things necessary to apply for and maintain and keep updated a current Australian passport for the child without the consent of the father.
12.That the mother shall be permitted to travel with the child outside the Commonwealth of Australia without the consent of the father.
13.That the mother shall retain possession of the child’s passport.
14.That within 21 days of the date of these orders the father pay to the mother an amount equal to one half of the fees paid and payable to [Dr D] for preparation of his report and attendance at the hearing of this matter; and the mother’s costs of and incidental to the listing of 4 March 2019 as agreed or assessed.
15.That the father pay the mother’s costs of and incidental to these proceedings.
The orders sought by the father were set out in his case outline, as follows:
1.Continue with current parenting agreement.
2.That the father shall continue to spend time with [X] as agreed in the original parenting agreement.
3.That the father and mother have a recovery order when orders are not followed by way of communication or agreed amendments to pick up times and locations via waiver signed dated and approved by the parties.
4.That [X] shall be compensated for lost time with her Father.
5.That all expenses for this court matter shall be directed to the mother.
6.That [X] shall be freely able to collect and open her mail at her discretion.
7.That [X] will have a postal address; a physical address and a phone number for her father to make contact with her.
8.That [X] will be available for videoconferencing at her own leisure to both parents and extended family under the supervision of both her mother and father.
9.That [X] will not receive a passport until she is of a reasonable age and both her mother and father agree to issuing a passport before the court after undergoing biological paternal clearances.
The position of the Independent Child’s Lawyer was reserved at the start of the hearing. In final submissions the Independent Child’s Lawyer indicated support for orders 2 to 13 inclusive of the orders sought by the Mother (order 1 already having been dealt with by the dismissal of the Application – Contravention and orders 14 and 15 relating only to costs matters between the parents). [2]
[2] Transcript 8 February 2021, page 23.
THE MATERIAL RELIED UPON AT HEARING
The Mother relied upon the following material:
(1)Outline of Case document prepared by Mr Campton SC (Exhibit A1);
(2)Amended Initiating Application filed 19 February 2019;
(3)The affidavit of the Mother, sworn or affirmed 18 February 2019 and filed 19 February 2019, together with the exhibits to the affidavit (totalling 532 pages of exhibits);[3] and
(4)The affidavit of Mr G, sworn or affirmed on 17 February 2019 and filed 19 February 2019.
[3] I note that although Mr Campton SC advised the Court on the first day of the hearing that he was not requiring the Court to look at all of those exhibits, the folder of exhibits to the Mother’s affidavit was marked as exhibit A3 and accordingly, the whole of the exhibit is in evidence.
In addition to exhibits A1, A2 and A3 already referred to, the Mother relied upon the following exhibits:
(a)Exhibit A4 – being a final Apprehended Domestic Violence Order (“ADVO”) for the protection of the Mother from the Father made 7 March 2019 for a period of 12 months in the Suburb AL Local Court;
(b)Exhibit A5 – being a print of an email from the Father to the Mother’s solicitors, copied to the ICL, dated 24 June 2019;
(c)Exhibit A6 – being a two page print out from the Child Support Agency in relation to the current administrative assessment of child support payable by the Father to the Mother for 1 August 2019 to 31 August 2019 and statement of arrears;
(d)Exhibit A7 – being documents produced on subpoena by the Department of Justice being pages marked with blue or purple tags;
(e)Exhibit A8 – being material produced on subpoena by AO Hospital being documents marked with purple tags;
(f)Exhibit A9 – being documents produced on subpoena by NSW Police being documents marked with purple tags;
(g)Exhibit A10 – being prints of five emails from the Father to the Mother’s solicitor and the Independent Child’s Lawyer dated 4 and 22 October 2019, 22 April 2020 and 17 December 2020, and one from the Father to the Mother’s solicitor dated 22 December 2020;
(h)Exhibit A11 – being prints from the Child Support agency website of the assessments from 1 September 2019 to 28 February 2022 of the arrears owed, and some past payments in relation to the Father’s payments to the Mother through the agency of Child Support for X;
(i)Exhibit A12 – being a schedule of the Mother’s costs claimed in relation to the Father’s Application - Contravention filed 9 January 2018 and for 4 March 2019 regarding the parentage testing issue; and
(j)Exhibit A13 – being written submissions prepared by Mr Campton SC.
The Father relied upon the following materials:
(1)Case Outline document (Exhibit R1);
(2)His Response filed 27 July 2018; and
(3)His affidavit sworn filed on 5 July 2019.
The Father’s affidavit included a page headed “Appendice – Table of Exhibits” listing 26 categories of documents. The documents were not otherwise referred to in the affidavit as either annexures or exhibits, and were contained in three large spring binders and were not paginated. On the third day of the hearing the Father tendered the three folders, with no objection made for the Mother or the Independent Child’s Lawyer, and the three folders became exhibit R2.
It should be noted, that the Father’s trial affidavit was sworn by him before a Justice of the Peace named Ms AQ on 5 July 2019. However, each section of the three folders of exhibits to the Father’s affidavit that became Exhibit R2 refer to an affidavit of the Father sworn or affirmed on 4 July 2019 before a Justice of the Peace named Ms AR. However, as the three folders became an exhibit in the matter I disregard that anomaly and treat the whole of the contents of the three folders as evidence in the hearing.
The Father also relied upon the following further exhibits;
(a)Exhibit R3 – being a document headed “Company AS” relating to the hire of ski equipment;
(b)Exhibit R4 – being a bundle of documents from Company AT, being five service tax invoices and six cash register receipts; and
(c)Exhibit R5 – being three empty Australia Post express post satchels each addressed to X and each marked “Return to Sender”.
At the commencement of the hearing, the Father advised that he also sought to rely on an affidavit by his sister, Ms AU sworn or affirmed and filed 1 February 2019. However, on 27 August 2019 it was made very clear to the Father that Ms AU was required by the Mother and the Independent Child’s Lawyer for cross-examination and was to be present for that purpose on 28 August 2019 or the affidavit would not be read.[4] On 28 August 2019, the Father advised the Court that he would not be calling Ms AU as she was not available.[5]
[4] Transcript 27 August 2019, page 217.
[5] Transcript 28 August 2019, page 229.
The Independent Child’s Lawyer relied upon an Outline of Case document prepared by Mr Sperling of Counsel (Exhibit ICL1) and the following exhibits:
(a)Exhibit ICL2 – being the Expert’s Report by Dr D dated 25 September 2018;
(b)Exhibit ICL3 – being an email from the Independent Child’s Lawyer to the Father dated 3 September 2020; and
(c)Exhibit ICL4 – being a letter dated 13 September 2019 from Dr D to the Independent Child’s Lawyer setting out quotes for a supplementary report based on documents provided, and for attendance for cross-examination at the hearing.
On the afternoon of the first day of the hearing, the Father indicated that he objected to the whole of Dr D’s expert report coming into evidence. In the course of making that objection the Father indicated that his copy of the Expert Report, which he had left behind at his home in Town E rather than bringing to Court, may have been different in some respects to the original document entered as Exhibit ICL2. The Father never resolved that contention by producing his copy of the Report, and all of the bases on which he made objection to the Report being received in evidence were dismissed.
The Mother was cross-examined by the Father on 26 August 2019 and by Mr Sperling for the Independent Child’s Lawyer on 27 August 2019, with a short re-examination.
The Father was cross-examined by Mr Campton on 27 and 28 August 2019 and by Mr Sperling for the Independent Child’s Lawyer on 28 August 2019. The Father did not enter any re-examination. Mr G was not required by either the Father or the Independent Child’s Lawyer for cross-examination.[6]
[6] Transcript 26 August 2019, page 101.
CREDIT FINDING
Where the evidence of the parties conflicts, I prefer the evidence of the Mother. I observed the Mother to be a frank and responsive witness in cross-examination by both the Father and Counsel for the Independent Child’s Lawyer. On the other hand, I observed the Father to be an evasive, prevaricating, unreliable and obfuscating witness. In making that finding it is necessary for me to recite examples from the Father’s cross examination below.
Regarding [X]’s parentage:
MR CAMPTON SC: So you know that [Ms Wolfe] is also seeking orders that you pay the costs that were thrown away by her in having to come to court on 4 May 2019, don’t you?
FATHER: Yes.
MR CAMPTON SC: Right. Because that was unnecessary, wasn’t it?
FATHER: Well, it would seem so now.
MR CAMPTON SC: Yes?
FATHER: Yes.
MR CAMPTON SC: And you had signed [X]’s birth certificate?
FATHER: Yes.
MR CAMPTON SC: And in fact, you’ve got a copy of her birth certificate in your exhibits, haven’t you?
FATHER: Yes.
MR CAMPTON SC: Right. And you even had the birth certificate translated into Italian, didn’t you?
FATHER: Yes.
MR CAMPTON SC: Yes. And you also put [X]’s baptismal certificate in your exhibits, didn’t you?
FATHER: That’s correct, yes.
MR CAMPTON SC Yes. And so you’ve known ever since she was born that you were the father, didn’t you?
FATHER: I would say so, yes.
MR CAMPTON SC: And so I would suggest to you that what you were trying to do on 4 March before the Court was twofold. First of all, you were trying to avoid and ensure that the hearing dates allocated in this court later in March were vacated because you hadn’t done your affidavit. Do you agree or disagree with that?
FATHER: Yes, I agree.
MR CAMPTON SC: Yes. And you were using the fact of the parenting testing as a device to have those trial dates vacated?
FATHER: No. No that’s not correct
MR CAMPTON SC: And nextly, this was a further methodology of causing anxiety or upsetting or intimidating [Ms Wolfe], wasn’t it?
FATHER: Well, I – I don’t think so.
MR CAMPTON SC: Well?
FATHER: No, that’s no, that wasn’t my intention.
MR CAMPTON SC: Well, did you think about it?
FATHER: No.
MR CAMPTON SC: You knew you were the father of [X] when you sought the parentage testing order, didn’t you?
FATHER: That’s right.
MR CAMPTON SC: Right. It was a mischief to seek the order, wasn’t it?
FATHER: No. It was a truth – our truism.
MR CAMPTON SC: Sorry?
FATHER: It was a truth.
MR CAMPTON SC: It was a truth?
FATHER: Yes. Seeking the truth. No mischief.
MR CAMPTON SC: But you knew you were the father anyway?
FATHER: Well, I – I wasn’t certain.
MR CAMPTON SC: You were as certain as you could be, weren’t you?
FATHER: I was as certain as I could be, yes. [7]
[7] Transcript 27 August 2019, pages 150-151.
In response to questions put by Mr Campton SC regarding the Father’s representations to Dr D:
MR CAMPTON SC: Can you go to paragraph 54 on page 10. Have you found that?
FATHER: Yes.
MR CAMPTON SC: Okay. So [Dr D] records there that he asked you if you had anger management problems?
FATHER: Yes.
MR CAMPTON SC: Do you accept that he did do that?
FATHER: Yes.
MR CAMPTON SC: And that you responded that it was a gland issue, something about the thyroid?
FATHER: Yes.
MR CAMPTON SC: That’s just nonsense, isn’t it?
FATHER: No. No, it’s not. There’s a hereditary condition in my family. And I’ve noticed with my sister, she gets quite short. And I thought it – it might have been – because it’s a late-onset degenerative disease or condition, and I thought that it may have been something that I was experiencing.
MR CAMPTON SC: I want to suggest to you that nowhere in your evidence or [Dr D] did you say that you’ve had any treatment for anything relating to an abnormal thyroid?
FATHER: That’s right. Yes, I didn’t.
MR CAMPTON SC: Yes?
FATHER: It was still undergoing investigation from doctors.
MR CAMPTON SC: Who’s investigating it?
FATHER: I’ve had a couple of GPs look into it. I – I can’t remember which.
MR CAMPTON SC: Who are they?
FATHER: Well, I – I was between, at the time, two cities. So it – it may…
MR CAMPTON SC: I just asked their names. Who are they? One doctor – what’s his name?
FATHER: Doctor – geez, he’s well known in [Town E]. That’s embarrassing.[8]
[8] Transcript 27 August 2019, page 161.
Regarding the Father’s assertions about the Mother to Dr D:
MR CAMPTON SC: [Dr D] records that you told him that [Ms Wolfe] had had visits from strangers that you didn’t know; is that right? That’s what he records. That’s what you told him, isn’t it?
FATHER: I thought she said she was isolated.
MR CAMPTON SC: Sir, I’m just recording – I’m putting to you what [Dr D] has recorded that you told him in paragraph 40. You told him that [Ms Wolfe] had visits from strangers that you didn’t know?
FATHER: That’s right.[9]
[9] Transcript 27August 2019, page 170.
Regarding the Father’s assertions to Dr D regarding identification, and further assertions regarding the Mother:
MR CAMPTON SC: Yes. And then in paragraph 115, he records – I think you said that because you saw [X], that a finger scan or a retinal scan of [X] wasn’t required?
FATHER: That’s right.
MR CAMPTON SC: Yes. He records this in paragraph 115: he asked you why you needed all this confirmation about [X]’s identity and that you said it was just the way society was moving. And then he has this statement: that you recently had blood tests; you needed to re-confirm your identity due to the paranoia in society. What blood tests did you have?
FATHER: Which – which statement was – sorry.
MR CAMPTON SC: Yes. Look at 115. Second sentence. A record that you told [Dr D] that you had recently had blood tests to re-confirm your identity. When did that happen?
FATHER: Geez, I – I don’t even recall making that statement. I have had some blood tests recently, though.
MR CAMPTON SC: Well, this would have been prior to September 2018?
FATHER: Yes. I – I was getting a series of blood tests for various conditions, so…
MR CAMPTON SC: To re-confirm your identity. Why were you concerned about your identity?
FATHER: I really don’t know. I…I…
MR CAMPTON SC: Okay?
FATHER: I don’t recall making this statement.
MR CAMPTON SC: Who was the doctor who undertook the blood tests?
FATHER: I have had several doctors take blood tests. [N] Medical Centre at the hospital, [O Street]. I’ve had a blood test since being – residing in [Town E] from the – [P] Pathology, and I think [Suburb Q] – [Suburb Q] Medical Centre as well.
MR CAMPTON SC: Sir, in paragraph 61 of [Dr D]’s report, he says this:
[Mr Varni] went on to explain that it had been hard to begin dating again because of [Ms Wolfe]’s strong reputation in town.
Did you say that to him?
FATHER: Yes.
MR CAMPTON SC: Yes?
FATHER: Yes.
MR CAMPTON SC: He says you also explained:
Everywhere she goes, I feel like I’m a stain.
Did you say that to him?
FATHER: Yes.
MR CAMPTON SC: Yes. And he records that you said that this included the [Region R], [Suburb S], [Suburb T], [Suburb U], [Suburb V], but not [Town E]?
FATHER: Yes. I was – I was frequenting those places quite a bit…
MR CAMPTON SC: Yes?
FATHER: when I was in Sydney. Yes.
MR CAMPTON SC: So what you were telling [Dr D] was that the fact of your relationship with Ms Wolfe was known throughout the [Region R], [Suburb S], [Suburb T], [Suburb U] and [Suburb V]?
FATHER: Yes. I would say so.
MR CAMPTON SC: Sir, do you think, sitting there with the benefit of hindsight, that really there might have been a degree of paranoia about that?
FATHER: I don’t think so.
MR CAMPTON SC: Okay?
FATHER: Not – not when someone holds a position as public as that, as – as – and as intimate as [tradesperson] in the community. A lot gets said in the local [workplaces]. You ask – ask anybody.
MR CAMPTON SC: Okay. All right.
HIS HONOUR: [Region R] and Suburb S – a [tradesperson] in [Region R], word will get back to [Suburb S]?
FATHER: Well, it depends on where they – where that person may frequent.
MR CAMPTON SC: Okay.
FATHER: At the time, [Ms Wolfe] was going between [Region R] – I – I believe working at [Region R] – had – had a workplace at [Region R] and had a university campus that she attended at [Suburb S]. So…
MR CAMPTON SC: Okay.
FATHER:…you know, both places house people that socialise. So…[10]
[10] Transcript 27 August 2019, pages 173-174.
Regarding the Father’s assertions to Dr D that he had paid a service to provide information about X:
MR CAMPTON SC: Now, in paragraph 43 of [Dr D]’s reports, he records that you complained it was necessary for you to pay a service to find information about your daughter. Is that true?
FATHER: Pay a service?
MR CAMPTON SC: Yes?
FATHER: Which paragraph is that?
MR CAMPTON SC: 43 on page 9?
FATHER: Yes.
MR CAMPTON SC: Yes. So who was the service you paid to find out information?‑
FATHER: I – I haven’t paid a service. It’s just a general sweeping statement based on the events.
MR CAMPTON SC: Don’t you think that it would have been pretty terrifying even for [Ms Wolfe] to read in this report that [Dr D] had reported that you said you had paid a service to find out information?
FATHER: That’s his reporting. Objection. I’m not responsible for what he puts in his report.
MR CAMPTON SC: I wasn’t really asking about that, [Mr Varni]. I was asking if you think that might have been pretty terrifying for [Ms Wolfe] to know that?
FATHER: Again, objection. I’m not responsible for what he states in his report.
HIS HONOUR: That’s not an answer to the question. And if you’re objecting to the question, I’m overruling your objection. So please answer the question?
FATHER: It may have been.[11]
[11] Transcript 27 August 2019, pages 178-179.

Regarding an example of the Father’s threatening communication with the Mother:
MR CAMPTON SC: Page 9 of the second tab – or third tab in the exhibits, an email. This is an email from you to my client, 25 December 2016. So let’s just put that in time. This is three years after you’ve separated:
You seem to forget that when you pass away, she will be staying with me. That’s why it’s important. Your two-minute fling won’t exist when you unexpectedly pass on. Consider this and consider your selfish actions, foolish.
MR CAMPTON SC: You sent that email, didn’t you?
FATHER: Yes.
MR CAMPTON SC: Sir – and what you were doing in that email was threatening my client’s life, weren’t you?
FATHER: No.
MR CAMPTON SC: There can be no other construction to it, can there?
FATHER: There can be. [Ms Wolfe] is a smoker. Was a smoker.
HIS HONOUR: And why would that make her unexpectedly pass on?
FATHER: Well, I’ve seen people just unexpectedly appear with terminal cancer in my lifetime. I – I just assume that, you know, it might be something that we may have to look out for since her habit was – it was quite – quite frequent. I – I – I saw her smoking many cigarettes.
HIS HONOUR: Unexpectedly contracting cancer is not unexpectedly passing on, is it?
FATHER I don’t agree.
MR CAMPTON SC: Can you look at page 244 of the text messages. Have you found that?
FATHER: Yes.
MR CAMPTON SC: [Ms Wolfe] is saying to you:
But how many times do I have to tell you I’m not in love with you. I don’t want to be with you. Just move on, [Mr Varni]. God, it has been ages. I don’t know why you think we’re still getting back together.
And your response is:
Why do you want to live this way? It will hurt your daughter and the strangers you meet. I’m always going to be there. You will never have something meaningful with another man, and your daughter will never feel like her life is perfect.
What you’re trying to do there is again coerce my client into reconciling with you well after you’ve separated, isn’t it?
FATHER: Yes. Yes, that’s what I was doing.[12]
[12] Transcript 27 August 2019, pages 186-187.
In response to questions from Mr Campton SC about the Father’s understanding of how his messages may have made the Mother feel:
MR CAMPTON SC: Sir, have you thought for one moment about how all of these messages that we’ve identified in the evidence will make [Ms Wolfe] feel?
FATHER: No. Not at all. The reason is because she has hired counsel to represent her. I – I don’t feel that there’s a need.
HIS HONOUR: That’s not an answer to the question. Have you thought at all about how all of these messages that have been identified would make [Ms Wolfe] feel?
FATHER: When I had a chance to read all of these messages by myself, I did have an emotional response and I – I was surprised at some of the messages that I had sent, yes.[13]
[13] Transcript 27 August 2019, pages 191-192.
And further on that topic:
HIS HONOUR: [Mr Varni], when I repeated Mr Campton’s question to you about having your attention directed to all of those messages and how did you think that made [Ms Wolfe] feel, your answer to me, when you eventually gave one, was wholly and solely about how they made you feel when you re-read them?
FATHER: Yes, your Honour.
HIS HONOUR: Do you understand that?
FATHER: Yes, your Honour.
HIS HONOUR: You didn’t give me any answer about how you think they would have made [Ms Wolfe] feel. Now, what’s your answer to that? How do you think they would have made [Ms Wolfe] feel, not you?
FATHER: Annoyed. Annoyed.[14]
[14] Transcript 27 August 2019, page 192.
Regarding the Father’s assault of the Mother’s partner, [Mr G]:
MR CAMPTON SC: So you decide you will kick him?
FATHER: Yes.
MR CAMPTON SC: You break his finger?
FATHER: I don’t agree.
MR CAMPTON SC: You don’t think you broke his finger?
FATHER: I can’t be certain.
MR CAMPTON SC: You accept that his finger was broken, don’t you?
FATHER: Well, it may have been, may have been existing.
MR CAMPTON SC: Well, you pleaded guilty to the police facts at court about him having a broken finger out of the incident from the kick, aren’t you?
FATHER: I also stated in the police facts that Mr – that [Mr G] might have had an existing injury.
His Honour: He may have been sitting there with a broken finger?
FATHER: It’s possible. [15]
[15] Transcript 27 August 2019, page 199.
Regarding a previous relationship of the Father’s:
MR CAMPTON SC: There’s then a police event record of 2011, so 2011?
FATHER: Yes.
MR CAMPTON SC: and it records you just ended a relationship with this woman. Who that would have been – [Ms W]?
FATHER: That would have been [Ms W]. Yes.
MR CAMPTON SC: Okay. And it records that you were sending multiple text messages to [Ms W]?
FATHER: Yes.
MR CAMPTON SC: And she attended the police station to find out how to get it to stop?
FATHER: Yes.
MR CAMPTON SC: Right?
FATHER: Yes, that’s right.
MR CAMPTON SC: You remember that happened?
FATHER: Yes.
MR CAMPTON SC: Okay. And do you remember that the police contacted you and asked you to stop?
FATHER: Yes, yes.
MR CAMPTON SC: And the – there’s another event record from 2011 recording that [Ms W] would come home and there would be gifts on her doorstep. Do you remember doing that?
FATHER: Yes.
MR CAMPTON SC: And then she was employed at [Employer Y] in [Suburb Z], was she?
FATHER: Yes, from what I can remember, yes.
MR CAMPTON SC: Yes. And in 2011, it’s recorded that you put on a social media post all photographs of the house next door to [Ms W]’s that was up for lease?
FATHER: Well, I needed a place to live and I thought, you know, live close to people you know. Yes.
MR CAMPTON SC: So what had happened was that you had decided that you were going to apply to lease the property right next door to [Ms W]’s?
FATHER: No, no, that’s a false claim. I – it wasn’t the first place that I looked at. I looked at several other places before pursuing that place.[16]
[16] Transcript 27 August 2019, page 211.
On the similarity between some of the Father’s past relationships, and the Father’s relationship with the Mother:
MR CAMPTON SC: Can you see that some of the issues that arose with the terms of the relationship between you and your prior girlfriends or partners have a similarity with some of the issues that currently resonate in the relationship you have with [Ms Wolfe]?
FATHER: Have you lived with [Ms Wolfe]?
HIS HONOUR: Not an answer to the question.
MR CAMPTON SC: I haven’t. But can you see a similarity about that?
FATHER: Yes.[17]
[17] Transcript 27 August 2019, page 235.
Regarding the Father’s complaint of perjury against the Mother:
MR SPERLING: Sir, carrying on from that, when you were asked some questions, you were asked about going to the police to have the mother charged with perjury?
FATHER: Yes.
MR SPERLING: Okay. And you said, “not just [Ms Wolfe] but a complaint of perjury generally”?
FATHER: Yes.
MR SPERLING: Who were you referring to as to “not just [Ms Wolfe]”?
FATHER: Well…
MR SPERLING: I’m just asking you the names of the people?
FATHER: I don’t know names of people. It’s…
MR SPERLING: Okay?
FATHER:…very hard to pinpoint exactly where it was – who it was.
MR SPERLING: What do you understand to be meant by a complaint of perjury?
FATHER: Well, changing – changing a document to influence an outcome.
MR SPERLING: Changing a document to influence an outcome?
FATHER: Yes.
MR SPERLING: Okay. And, in relation to that, you talk about a document that has been provided to the court or…
FATHER: Yes.
MR SPERLING:…swear documents, something like that?
FATHER: Yes.
MR SPERLING: Okay. So you’re saying it’s not just [Ms Wolfe] but somebody else?
FATHER: Could be, yes.
MR SPERLING: Could be?
FATHER: Yes.
MR SPERLING: Well, it’s your complaint, sir. All I’m asking you is what you – who you’re complaining did it?
FATHER: Well, I can’t – I can’t say because I had only suspicions and I have no – yes, no evidence.
MR SPERLING: Is that in relation to the email that you were referring to, the Hotmail account?
FATHER: Yes.
MR SPERLING: Was it referring to something else?
FATHER: I can’t remember. I can’t remember.
MR SPERLING: It could have been?
FATHER: It’s possible, yes. I just…I just…
MR SPERLING: Other documents?
FATHER: Yes, it’s possible.
His Honour: It’s possible but you made the complaint?
FATHER: I know. But…
HIS HONOUR: You can’t remember what your complaint was?
FATHER: It was a long time ago.
HIS HONOUR: It was last year, wasn’t it?
FATHER: Yes but a lot has happened since last year, between now and last year.
HIS HONOUR: Do you make regular complaints to the police about perjury?
FATHER: No, not…not regular. Just when…just when…
HIS HONOUR: Well, it’s something that you would be likely to remember the detail of if you were making a complaint to police, wouldn’t it?
FATHER: I am sensitive with things. If I notice a change in my phone that I haven’t made or a change in…like, in the…
HIS HONOUR: No, I didn’t ask you about that, I’m asking you about your lack of memory of what you were complaining about?
FATHER: I…
HIS HONOUR: The Hotmail account?
FATHER: Yes.
HIS HONOUR: Mr Sperling asked you if there was any other matter and your indication was that you can’t remember?
FATHER: I can’t.
HIS HONOUR: May have been?
FATHER: I can’t remember. [18]
[18] Transcript 28 August 2019, pages 260-261.
Regarding the Father’s self-assessment:
MR CAMPTON SC: Okay. So what I want to suggest to you is that the theories that you’ve just given in your evidence are a great example of those preoccupations that drive you. Do you agree or disagree with that?
FATHER: I think they’re examples of somebody with higher order thinking that that might be able to, you know, base their opinions on events that occur after the fact.
MR CAMPTON SC: Who has the higher order thinking?
FATHER: I think in this case it would be myself. [19]
[19] Transcript 28 August 2019, pages 246-247.
THE EVIDENCE
Both parents were 34 years of age at the time of the hearing. They met and commenced a relationship in 2012, according to the Mother, or early 2011, according to the Father. They commenced their cohabitation in 2012. They separated on a final basis on 12 November 2013, with their cohabiting relationship lasting 17 months.
At the time of hearing, the Mother was a student and employed as a casual tradesperson and resided at an undisclosed location. The Father was employed as a tradesperson in Town E where he resided at an undisclosed address. The Father has completed a course of study at university.
The Mother fell pregnant three months after the parties first met and the child X was born in 2012 and was 11 months of age at the time the parents separated. X was eight years of age at the end of the final hearing. The Mother left work when she was 30 weeks pregnant with X and was X’s full-time carer until the parties’ separation.
At the time the hearing ended in 2021, X was in Year 3 at B School, where she would now be in Year 4.
As previously recited, the parties entered into final parenting orders by consent on 31 December 2013 by filing the orders and an Application for Consent Orders in the Family Court of Australia.
The Mother is in a new relationship with Mr G, a tradesperson, whom she met in about 2016. They commenced a cohabitive relationship in 2016 and they have a daughter, H, born in 2018. H turned three years of age the day after the final hearing ended. Mr G does not have any other children. The Mother is studying for her qualifications at the AB School and works as a tradesperson two days per week.
There is a child support assessment under the applicable legislation for the Father to pay $118.38 per week to the Mother for the financial support of X. As at 7 February 2021, the Father was in arrears and a sum of $15,446.76. The Father was evasive in his evidence in cross-examination in relation to his child support obligations and the arrears outstanding and proffered inadequate excuses to Dr D in his interview for the Expert’s Report.[20] During the Father’s cross-examination the following occurred:
MR CAMPTON SC: Had you thought rather than perhaps giving your daughter a telephone or a [toy], that you could pay some of the child support arrears?
FATHER: Yes, I definitely have considered it, but the – there were reasons why I…didn’t act on my own. I had wage deductions from my employer at the time, and I only within the last two years have changed my employment conditions from full time down to casual with one employer. The other employer remained full time. And the other reason is because child support is one difficult to reach. I have been to the Centrelink office and tried contacting them, waited on the phone in excess of 45 minutes to an hour. Third, the child support office haven’t done a proper assessment of my financial status.
MR CAMPTON SC: Right. So because of those reasons, you don’t want to pay the arrears. You would buy your daughter, say, a computer or a telephone?
FATHER: Well, it assists her education, yes.[21]
[20] Expert’s Report, paragraphs 31 and 119.
[21] Transcript 28 August 2019, page 238.
Once X was born, the parties lived with the maternal grandmother at Suburb L.
The Mother was full-time carer for X and the Father was in employment and would take the only motor vehicle available to the family, the Mother’s car, to work with him each day, leaving the Mother without her own transport for herself and the child.
The Mother asserts in her evidence that the Father was controlling and possessive in his behaviour and that he would only give the Mother small sums of money, sometimes only $20 a week, and that he would then question her about how she had spent the money.
When X was about five months of age the family moved to rented premises on AC Street in City M, where they lived until they separated in November 2013. During that time the Father persistently accused the Mother of engaging in affairs, apparently based on his finding a hair out of place in the bathroom and some disturbance of his toothbrush.
One day while the parties were living in City M, the Mother received a text message from the Father’s phone as follows:
This is constable [the Mother could not recall the name used] from [City M] police station. We are informing you that [Mr Varni] has been in a car accident and has been sent to hospital.
On receiving the message the Mother rang the Father’s phone, but he did not answer. The Mother then rang all the hospitals and police stations in the area and could not trace the Father. The Father eventually answered his phone and said to the Mother words to the effect of:
I sent the text. How would you feel if something really happened to me?
In the period between receiving the text message from the Father and the Father answering his phone, the Mother was very upset and believed that the Father had been in an accident.
During the cross-examination of the Father by Mr Campton SC, the Mother’s evidence about the phony text message from the police was put to the Father and then the following evidence was given:
MR CAMPTON SC: In paragraph 19, she records that she received a text message from your phone from someone being identified as a constable at [City M] saying you’ve been in a car accident and sent to hospital?
FATHER: Yes.
MR CAMPTON SC: Yes?
FAHTER: Yes, that did occur.
MR CAMPTON SC: And that happened, didn’t it?
FATHER: Yes, it did.
MR CAMPTON SC: And I want to suggest this is all part of your – I will call it – controlling and coercive behaviour while you’re living with [Ms Wolfe]?
FATHER: I object and disagree.
MR CAMPTON SC: You disagree with that?
FATHER Yes.
MR CAMPTON SC: Now, let’s get this straight: you were never involved in an accident, were you, at this time?
FATHER: No. There was no accident.
MR CAMPTON SC: No. This was all part of you impersonating a police officer, wasn’t it?
FATHER: Yes.
MR CAMPTON SC: Yes. And I want to suggest to you that – is what you’ve put in your outline document accurate? Exhibit R1?
FATHER: Yes.
MR CAMPTON SC: Yes. You’ve put on the second page of the chronology at about point 4:
[Mr Varni] sends [Ms Wolfe] a text – from a particular number – impersonating a police officer.
So that was true, wasn’t it?
FATHER: Yes.
MR CAMPTON SC: And then the message says:
Hello [Ms Wolfe], my name is – something – from the police. Your partner has been involved in an accident. We would like you to come and identify the body.
FATHER: That’s correct.
MR CAMPTON SC: Right? So is that what you said?
FATHER: Well, there – there were events leading in – leading into that statement, yes.
HIS HONOUR: Is that what you said?
FATHER: That is what I – that is what I said.
MR CAMPTON SC: Yes. So what you were doing is you sent this horrific text – can you see that?
FATHER: Yes.
MR CAMPTON SC: Yes. And [Ms Wolfe] says after receiving the message, she tried to ring your number. You didn’t answer. She called all the hospitals and the police, but you couldn’t be traced?
FATHER: That’s correct.
MR CAMPTON SC: Right. And then you eventually answered your phone, saying, “I sent the text. How would you feel if something really happened to me?”
FATHER: That’s right.
MR CAMPTON SC: Sir, do you think that was a very disturbed thing to do?
FATHER: No, because there was a lesson behind it.
MR CAMPTON SC: You were teaching [Ms Wolfe], were you?
FATHER: Yes.
MR CAMPTON SC: Okay.
HIS HONOUR: Do you agree that your version of the message as set out in your case outline would have led [Ms Wolfe] to assume that you were deceased?
FATHER: Yes.
MR CAMPTON SC: Sir, you agree that that’s you trying to control [Ms Wolfe]’s behaviour, isn’t it?
FATHER: No.
MR CAMPTON SC: Well, that’s why you’re teaching her lesson, isn’t it?
FATHER: I was offended.
MR CAMPTON SC: Sir, you teach someone a lesson to control their behaviour, don’t you?
FATHER: It depends.
MR CAMPTON SC: Well, what else could be the object of the lesson other than to control someone’s behaviour?
FATHER: You could teach them a skill.
MR CAMPTON SC: It was your word “lesson”, wasn’t it?
FATHER: No.
MR CAMPTON SC: Sir, I want to suggest to you that that’s what you just told his Honour no more than a minute and a half ago?
FATHER: I – I think – I think you need to read both statements side by side to understand what actually happened.
HIS HONOUR: Your previous answer was, “No, there was a lesson behind it”?
FATHER: Well, that’s right. There was a lesson behind it.[22]
[22] Transcript 27 August 2022, pages 168-170.
On 11 November 2013, an argument started between the parties stemming from the Father accusing the Mother of “seeing other men” and the Mother responding by informing the Father that she wished to leave and did not wish to live with him anymore. The Mother began to pack up her car to leave, and whilst doing so, the Father locked her out of the unit with X aged 11 months still inside. The Mother had only her car keys. She drove to the police station and was able to have police accompany her back to the unit. The Father would not allow the Mother to take X with her and the police were unable to assist in this regard. The Father also refused to give the Mother her driver’s licence, her handbag with her money in it or any clothes. The police were also not able to assist her in this regard.
In each conversation that the Mother had with the Father after telling him that she intended to leave and did not want to live with him anymore, the Father was insistent that she not leave and that she must remain at the home with him. After the Mother had left the home she received a text message from the Father in words to the effect of, “it will be a long time before you see her again”, referring to X.
On 12 November 2013 the Mother had a number of conversations with the Father about returning to the home to collect X. The response she received from the Father was to the effect of, “you can only see X if you come home and stay with me”. As a means of getting the child into her care the Mother made the Father understand that she would stay in the relationship and that she would drive the Father to work that day. The parents met at Suburb AD Railway Station, with the Father bringing the child with him. The Mother then dropped the Father to work and returned to the City M unit. She packed her own and the child’s necessities before driving to the home of a friend at Suburb AE where she resided for several weeks before moving in with the maternal grandmother at her home at Suburb L.

The Father’s version of the events leading to the parents’ separation in paragraph 9 and subparagraphs of his trial affidavit differs from the Mother’s version in that he asserts that in the course of the argument on 11 November 2013 the Mother, “started throwing projectiles at me from the kitchen” prior to telling him that she was leaving him. He agrees that he locked her out of the house and claims that he did so because he, “wanted her to cool off and return the following day with a clear head”.
The Mother did not inform the Father where she was living after the separation and the Father attended at the maternal grandmother’s home while the Mother was still living with her friend at Suburb AE. He entered the maternal grandmother’s home without the maternal grandmother’s leave and searched the home for the Mother and child. He eventually found out that the Mother was living at the maternal grandmother’s home at Suburb L by having GPS coordinates lifted from an MMS photo image of X sent to him by the Mother. Shortly thereafter, the parents arranged for the Father to spend some short time with X at the paternal grandmother’s home.
The Father was cross-examined about his action in tracking the Mother down through the GPS coordinates as follows:
MR CAMPTON SC: Now, you say in paragraph 12.12 on page 4 that you go some photos of [X] that were sent to you via MMS.
HIS HONOUR: 12.2, Mr Campton.
MR CAMPTON SC: And you say you had a co-worker who knew how to collect GPS coordinates from the image?
FATHER: That’s correct.
MR CAMPTON SC: And in your outline of case document, exhibit R1, you, I think, identified that person. That was a [Mr AF] from [Employer AG]?
FATHER: Yes, he is my – my manager at…
MR CAMPTON SC: So he showed you how to trace the location of a photograph at the time?
FATHER: Yes. There was no – there was no direct link to [Ms Wolfe]. He just showed me how to do that.
MR CAMPTON SC: Yes. But you then used that information, that is, the tracking information, to locate where [Ms Wolfe] and [X] were; that’s right?
FATHER: Well, I tested his information to see if it was correct, yes.
MR CAMPTON SC: Yes. And you realise that that was a pretty terrifying circumstance for [Ms Wolfe], don’t you?
FATHER: Well, I didn’t really know where it was going to lead to.
MR CAMPTON SC: Well, go to your next page of your affidavit, page 5, paragraph 12.4. You checked the GPS coordinates and then found where your daughter was living with her mother and then you turned up there?
FATHER: That’s right. Yes.
MR CAMPTON SC: Right. And do you think that might have been a bit of a terrifying event, to see you suddenly turn up?
FATHER: Well, assuming that it was correct, and it ended up being correct, yes.[23]
[23] Transcript 27 August 2019, pages 177-178.
The Mother gave evidence that the Father would sit in his car across the road from the maternal grandmother’s home, “for hours at a time just looking at the house”. The Father denied this behaviour, but I accept the Mother’s evidence over that of the Father. On 10 December 2013, the Mother invited the Father to the maternal grandmother’s home to spend an hour and a half with X for her birthday and give her a present, but he refused to leave at the end of that time. The maternal grandmother called the police who attended and spoke to the Father and he appeared to leave, but when about an hour later, the Mother took X for a walk she saw the Father sitting in his car watching the house.
On 20 December 2013 the parties engaged in a settlement conference with the assistance of their legal advisers and agreed-upon parenting orders to be made on a final basis by consent. An Application for Consent Orders together with the signed minute of order from the settlement conference was lodged in the Family Court of Australia, and final parenting orders were made by consent on 31 December 2013, as detailed earlier in these Reasons.
Throughout 2014 the Mother received repeated text messages of a sexualised nature from the Father, many indicating he wanted to form a family unit again or suggesting sexual contact. Many such examples are contained in exhibit 2 to the Mother’s affidavit at Exhibit A3. These abusive and sexual text messages continued despite the ADVO of 14 May 2014 and its extension on 8 October 2014 to cover the Father approaching or contacting the Mother.
Due to events occurring in early 2014 relating to the Father’s behaviours, the Mother became concerned for X’s safety with the Father, and she stopped the child spending time with the Father pursuant to the orders of 31 December 2013. Through her solicitors on 27 February 2014, the Mother requested that the Father attend for consultation with a psychiatrist. After a course of correspondence between the parents’ solicitors, the Mother again, made the child available to spend time with her Father from 17 March 2014. This time was to only be during daytime, and no overnight time was to occur until X reached two years of age, with overnight time to occur thereafter only on the condition that the Father stayed at his mother’s home during that overnight time. The Mother said that the Father was irregular in spending time with the child during 2014 and 2015, often cancelling his arranged times with X at the last minute.
In early 2014 an incident occurred when the Mother received a text message from the Father about a car that was parked across the street from the Mother’s bedroom at the maternal grandmother’s home, describing the position in which the car was parked. The Mother received several text messages from the Father and then a telephone call from the Father in which he said, “whoever owns the car is in your house”. The Mother looked outside and saw the Father on the maternal grandmother’s property. She telephoned to the police and as she was on the phone she saw the Father open her bedroom window and hoist himself up as if to climb in through the window. The Mother screamed and said into her phone, “he is breaking into my house” upon which the Father left. In response to the Mother’s telephone call the police attended, including with the dog squad. About an hour after the police left, the Mother heard a screech outside her home and looking out the window she saw the Father’s car, and the car that the Father had described to her as being parked opposite her bedroom, travelling up the street. She then saw the Father drive his car into the side of the other car. The Father drove away quickly.
As a result of the events of that evening a final ADVO was made in the Local Court at Region R on 14 May 2014 for the protection of the Mother and X from the Father for a period of 12 months, containing the statutory order and an order that the Father not go within 20 metres of anywhere the Mother worked or of the Mother’s residential address. The order was varied on 8 October 2014 to add in an order that the Father not approach or contact the Mother by any means whatsoever except through legal representatives or pursuant to an order made under the Family Law Act 1975 (Cth) (‘the Act’).
In July 2014 the Father commenced living on the Suburb U campus of the AB School and thereafter, the Mother would drive X to either the paternal grandmother’s home at Suburb AH or the AB School campus at Suburb U for X to spend the day with the Father. The Mother would collect X and take her home at the end of the day.
The Father returned to live at the paternal grandmother’s home at Suburb AH in June 2015 and on occasions when X spent time with the Father, either daytime or overnight, the Mother drove her to the paternal grandmother’s home and collected her at the end of the Father’s time. The Father continued spending overnight time with X at the paternal grandmother’s home until 31 October/1 November 2016.
At 7:30PM on 31 October 2016, the Mother dropped X at the paternal grandmother’s home to spend two nights with the Father while she attended to university exams. When she turned her phone on after sitting her first exam on 1 November 2016 she had numerous missed calls from the Father’s brother, Mr AJ, reading “X is sick and I cannot contact Mr Varni”. The Mother called the Father’s telephone number several times, but he did not respond.
It was well known to both the Father and the Mother at this time that the Father’s brother Mr AJ had a serious drug problem including an addiction to ice, that he had psychiatric health problems and that he had spent time in prison. As tragic events transpired, Mr AJ committed suicide in 2018. The Mother telephoned Mr AJ and asked why X was with him and she was told:
[Mr Varni] brought [X] over at 9:00PM last night because he had to work. He could not look after her so I am looking after her.
In the succeeding few hours the Mother received a number of further telephone calls from Mr AJ. At noon Mr AJ rang the Mother and advised her, “Mr Varni has not come home and we cannot contact him. X is still vomiting and having diarrhoea.” The Mother obtained Mr AJ’s address and went straight there to collect her. On the way, she received a telephone call from the Father who advised that he was about to collect X and that there was no need for the Mother to attend. The Mother advised him that she would be attending at the paternal grandmother’s home to collect X.
The Mother attended at the paternal grandmother’s home at Suburb AH, spoke briefly to Mr AJ and then went into the house to collect X. The Father was present and attempted to block her entry to the home, but the Mother was able to pass him and was able to pick up X despite the Father, at one stage, picking her up from behind with his arms around her waist and attempting to carry her outside the property. The Mother took X to AK Hospital where she was treated. Following this incident the Mother did not allow the Father to spend time with X without having another person present. By arrangement with the day care authorities the Father was able to spend some time with X at her day care centre and also to occasionally speak to her on the telephone while she was at day care.
On 25 December 2016, the Mother received an email from the Father that read:
You seem to forget that when you pass away she will be staying with me. That’s why it’s important. Your two-minute fling won’t exist when you unexpectedly pass on. Consider this. Then consider your selfish actions. Foolish.
On 7 May 2017 an incident occurred outside the paternal grandmother’s home at Suburb AH when the Mother was dropping X off to spend time with her Father there. Whilst the Mother was standing in the open doorway of the car, the Father, “slammed the door hard into my body causing me to lose balance and fall over.” The Mother was able to leave in her car, but parked a short distance away due to her distress, and contacted the police. The police attended and spoke to the Mother and then spoke the Father. Despite the Father asserting to the police that the cause of the incident was a hip injury that caused him to slip and fall into the car door, with the car door then hitting the Mother, the police issued a further ADVO for the protection of the Mother from the Father. Those proceedings were before the Local Court at Suburb AL on 11 May 2017 at which time a final ADVO was made for the protection of the Mother from the Father for a period of 12 months.
Following the 7 May 2017 incident the Mother did not allow the Father to spend any time with X, supervised or otherwise, other than the Father’s regular attendance at X’s swimming lessons at the Region R Leisure Centre. For the first few months from May until July 2017 the Mother was accompanied on most occasions by her mother as she was fearful of the Father. However, in July 2017 the maternal grandmother left Sydney to stay with the Mother’s sister in Queensland, and the Mother began to attend the lessons with X alone. After a few weeks of attending alone, the Father began to approach the Mother during the lessons to initiate conversations about him spending time with X. The Mother asserts that the Father’s manner on these occasions was aggressive towards her.
On 29 August 2017, the Mother was accompanied to X’s swimming lessons by Mr G with whom she had formed a relationship soon after meeting in 2016 and with whom she and X began living in 2016. When the Mother, X and Mr G arrived at the swimming centre the Mother saw the Father already seated in the cafeteria area. Mr G took a seat at a separate table, “at the furthest distance from Mr Varni in the café stop” and the Mother took X to the bathroom to change for her swimming lesson. Whilst the Mother and X were at the bathroom, the Father approached Mr G and said to him, “I think you should leave”. Mr G responded, “I’m not going anywhere, mate”. This exchange was repeated between the Father and Mr G several times. The Father then moved closer to Mr G and Mr G stood up, and the Father said to Mr G again, “I think you should leave”. Mr G again responded, “I’m not going anywhere, mate”. The Father then stepped closer to Mr G and using both hands shoved him in the chest, pushing him backwards. Mr G then pushed the Father in the chest, whereupon the Father grabbed Mr G with both hands by his jumper and tried to force him to the ground. This caused the Father to fall over and bystanders at the swimming centre stepped in to separate the Father and Mr G. In being so separated the Father shouted at Mr G, “you need to leave! You are not X’s father! I am her Father and you need to leave!” To which Mr G responded, “I’m here to protect Ms Wolfe”.
Approximately two minutes after the Father and Mr G had been separated by the bystanders, the Father ran at Mr G and attempted to kick him in the groin. Mr G blocked the kick with his right hand, which was struck by the Father’s foot causing a fracture to Mr G’s ring finger. The police were called to the swimming centre and the Father was arrested and taken to the police station and charged with Assault Occasioning Actual Bodily Harm, breach of the then current ADVO protecting the Mother from the Father, and an application was made by police for an a AVO for the protection of Mr G from the Father.
Mr G was taken by ambulance to Region R Hospital.
The Father’s version of the event, as set out in his trial affidavit, is that:
I wasn’t getting much time with my daughter and I was quite frustrated that I only had 45 minutes with her. I’d had a bad day at work earlier that day and I lost my patience. I approached the table that [Mr G] was sitting at and I asked him to leave. I was adamant. He refused. I asked a second time. He refused. I lost my cool and pushed [Mr G]. He stumbled and stood up. I attempted to tackle [Mr G] to carry him outside. But I lost my balance after receiving a push from [Mr G] and fell to the ground. When I returned to my feet we were surrounded by other community members at the pool including life-guards and people separating the two of us to ensure nothing escalated further. Upon being separated [Mr G] insulted my work by stating, “you’re a lousy Dad. You don’t even pay for her,” to which I retaliated and kicked him. We were again separated. And police intervened.
The Father provided a somewhat different version in interview with an officer of the NSW Department of Corrective Services on 13 October 2017 as part of the process surrounding his Community Service Order. The note is the first document forming part of Exhibit A7 and reads in part:
The offender [a reference to the father] justified his aggressive behaviour by stating that he was expecting the new partner to do the “right thing and introduce himself, maybe shake my hand”, however, the offender said that when this did not happen he felt angry and upset. It was at this point when he demanded the victim to leave the premises. The offender admitted that he became enraged and had lost his sense of awareness with regards to where he was and the fact there were parents and children in the vicinity.
I accept fully the version of events as set out in the evidence of the Mother and Mr G, it being to the greater extent corroborated by the Father’s own version of events.
On 27 September 2017 a final AVO order was made in the Local Court at Region R for the protection of Mr G from the Father, containing the statutory order and an order that the Father not approach Mr G or contact him in any way, unless the contact is through a lawyer. The final order was in force for a period of two years.
In relation to the charge of Assault Occasioning Actual Bodily Harm, the Father was convicted at the Local Court at Region R on 29 August 2017 and sentenced to complete 250 hours of community service. In relation to the charge of contravening a prohibition/restriction in an ADVO, the Father was convicted and sentenced to eight months imprisonment commencing 9 November 2017 and concluding 8 July 2018, which was suspended on the Father entering into a bond under section 12 of the Crimes (Sentencing Procedure) Act 1999 (that section since repealed), with a condition that he be supervised by the NSW Probation Service and prepared to undertake eight months of counselling, educational development or drug and alcohol rehabilitation and anger management and domestic.
During the incident between the Father and Mr G and before the Father kicked Mr G’s finger, the Mother and X emerged from the bathroom and the Mother saw the Father and Mr G being separated, she asserts by “security”. The Mother handed X to one of the members of staff and approached Mr G to “see what was happening” at which time the Father ran at Mr G and attempted to kick him, causing injury to Mr G’s finger. The Mother gives evidence that, “X was a witness to all of this. This incident so scared X that she started to cry and became almost hysterical.”
The Father was cross-examined about the incident by Mr Campton SC and confirmed during the cross-examination that at the time he launched the kick at Mr G, X was present. He confirmed that she saw what transpired, that she was hysterically crying at the time and that she was terrified. However, it is worth recording a larger part of the cross-examination as illustrative of the Father’s sometimes quite extraordinary responses:
MR CAMPTON SC: Okay. So this man’s sitting in the coffee shop. You’ve heard that [Ms Wolfe] was dating someone new. You weren’t getting much time with your daughter, so you were frustrated because you only had 45 minutes with the swimming lesson; yes?
FATHER: That’s right.
MR CAMPTON SC: “I had a bad day at work” and you lost your patience?
FATHER: Yes.
MR CAMPTON SC: So what you then did is you walked over to where [Mr G] was and you said you wanted him to leave, on your version; that’s right?
FATHER: Yes.
MR CAMPTON SC: He said no; yes?
FATHER: Yes.
MR CAMPTON SC: You were adamant?
FATHER: Yes.
MR CAMPTON SC: …on your version, you asked him a second time, on your version?
FATHER: Yes.
MR CAMPTON SC: He said no?
FATHER: Yes.
MR CAMPTON SC: So then you decided to assault him?
FATHER: Yes, that’s correct.
MR CAMPTON SC: He stumbled and stood up, and you attempted to tackle him?
FATHER: That’s correct.
MR CAMPTON SC:…to carry him outside, on your version?
FATHER: Yes.
MR CAMPTON SC: You lost your balance, on your version, and you fell to the ground?
FATHER: That’s right.
MR CAMPTON SC: You say, on your version, when you returned to your feet you were surrounded by other community members, including lifeguards at the pool who were “separating us” and, importantly, you say, to ensure nothing escalated further?
FATHER: That’s right.
MR CAMPTON SC: You say that [Mr G] said – insulting you – “You’re a lousy dad. You don’t even pay for her”?
FATHER: That’s right. Yes.
MR CAMPTON SC: Okay. So what is the appropriate parental thing to do? Because your daughter is there by that time, isn’t she?
FATHER: Yes.
MR CAMPTON SC: So you decide you will kick him?
FATHER: Yes.
MR CAMPTON SC: You break his finger?
FATHER: I don’t agree.
MR CAMPTON SC: You don’t think you broke his finger?
FATHER: I can’t be certain.
MR CAMPTON SC: You accept that his finger was broken, don’t you?
FATHER: Well, it may have been, may have been existing.
MR CAMPTON SC: Well, you pleaded guilty to the police facts at court about him having a broken finger out of the incident from the kick, aren’t you?
FATHER: I also stated in the police facts that Mr – that [Mr G] might have had an existing injury.
HIS HONOUR: He may have been sitting there with a broken finger?
FATHER: It’s possible. [24]
[24] Transcript 27 August 2019, pages 198-200.

The distance between the Sydney metropolitan area and Town E is a matter of which I can take judicial notice as being something in excess of 500 kilometres and necessitating travel by car of between five and six hours in each direction. The Father’s financial position is not in evidence in sufficient manner to enable a finding as to its effect on any practical difficulty or expense in the Father spending time with X. Although there is detail in his evidence-in-chief and in cross-examination that would cast doubt on his ability to fund such time with X, particularly if occurring in Town E, as he seeks, so as to provide adequately for her needs.
The capacity of each of X’s parents to provide for her needs, including her emotional and intellectual needs.
The Mother has shown an entirely adequate capacity to provide for all of X’s needs, including her emotional and intellectual needs and an entirely adequate capacity to act protectively in X’s best interests.
In relation to the Father’s parenting capacity, I find that paragraph 139 of Dr D’s Report summarises the sad reality of the Father’s lack of parenting capacity succinctly. Dr D’s opinion as expressed therein is validated and confirmed by the evidence in the final hearing:
The father’s parenting capacity was identified to be impaired due to his mental state, poor anger management, preoccupations regarding the Mother and distress at his limited contact. His judgement was poor in prioritising [X]’s needs. Thus, despite being in arrears for Child Support he continuing [sic] to regularly provide lavish and inappropriate gifts without respect for appropriate limits imposed by her mother. His perception of [X]’s developmental needs was seen to be impaired. He lacked a developmental framework for considering her needs, resulting in persistent provision of lavish and inappropriate gifts. On occasion, he had confronted the mother and her partner in in his presence, accommodating in uncontrollable parental conflict and family violence.
The Father was not able to control his behaviour when he launched into a violent attack on Mr G even though he was aware at the time that X was present and could see what was happening. That is only one of the instances of the Father resorting to angry or violent behaviour in circumstances where X was present:
(a)His uninvited attendance at the maternal grandmother’s home, bashing on the door and yelling his demands that X be surrendered to him;
(b)Locking the Mother out of the home and refusing to pass X into her care on the night of the parents’ separation;
(c)His persistence in refusing to leave X’s birthday party in 2013 contrary to the agreement between the parents necessitating an attendance by police;
(d)His attempt to break into the Mother’s home in early 2014 through her bedroom window necessitating another attendance by police and issue of an Apprehended Violence Order;
(e)His attendance uninvited at X’s second birthday party in 2014 and parking himself at a table nearby reading the paper;
(f)His persistence in causing police attendance at the Mother’s home for wholly unnecessary welfare checks (up to 100!) in the course of which X had to be viewed by the attending police under the police themselves worked out the Father’s motivations and resorted to welfare checks by telephone call;
(g)His assault on the mother at the paternal grandmother’s home on 1 November 2016; and
(h)Causing the car door to strike the Mother on 7 May 2017 while X was in the car.
The Father considers the provision of expensive and inappropriate gifts to X, sent to her at her day care and then at her school, as being an adequate substitute for contributions to her regular financial support. This is a self-serving parental attitude in the nature of “buying love” from the child rather than a child-focused attitude of providing for her short-term and long-term financial needs. The present giving alone demonstrates the Father’s capacity to contribute to X’s financial support, but he does not.
As part of this consideration I will include the Father’s entirely fatuous assertion that he was uncertain as to X’s parentage, leading to the parentage testing orders on 4 March 2019 and vacation of the final hearing dates. During the Father’s cross-examination it became glaringly obvious that he never held any legitimate doubts or concerns as to his paternity of X, but rather he engineered the whole issue as a further harassment of the Mother, with the result that X, at six years of age, was forced to take part in the parentage testing procedure wholly unnecessarily. If there is any doubt that the Father was using the whole issue as an event to further harass and impose himself upon the Mother, one only has to look to the evidence of his notification of X’s school that the parentage testing order had been made. There was absolutely no need for anyone to notify the school. When cross-examined about this by Mr Campton SC, the Father excused that by asserting that he notified the school as “she may have needed to be absent from school for a period”. When it was then put to him that what he was trying to do was both intimidate and cause anxiety to the Mother by informing the school of the fact that parentage testing would take place, his response was, “I disagree. I think it was a courteous gesture.”[45]
[45] Transcript of 27 August 2019 page 166.
Mr Campton SC put to the Father, “you’ve known ever since she was born that you were the father, didn’t you?” To which the father answered, “I would say so, yes.” Then again, it was put to the Father, “You knew you were the father of X when you sought the parentage testing order, didn’t you?” To which the Father responded, “that’s right.”[46]
[46] Transcript of 27 August 2019 page 151.
It was put to the Father in cross-examination the following day that the parentage testing procedure was a complete waste of time and money, which the Father denied. When I put to the Father that you “never had any doubt that you are X’s father”, he responded by asserting that he did have doubts, “just based on comments that I read in Mr G’s affidavit.” The Father then asserted that his suspicion was that Mr G may have been X’s father. When this was explored with him further in cross-examination his responses became idiotic, eventually taking refuge in, “stranger things have happened.”
This is not the only example of the Father’s concentration in the proceedings being more on harassing and perhaps revenging himself on the Mother as opposed to attempting to search out what arrangement would be in X’s best interests.
I find that the Father lacks the capacity to provide for X’s needs including her emotional and intellectual needs.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of X’s parents, and any other characteristics of X that the court thinks are relevant.
I find that there is nothing relevant to be considered under this additional consideration other than that X is currently a nine year old female child and not yet in a position to wholly care for herself on a day-to-day basis. X needs capable, competent and non-harmful parental supervision as she develops towards her teenage years.
The attitude to X, and the responsibilities of parenthood, demonstrated by each of X’s parents.
I find that the matters to be considered and findings made under this particular heading are adequately dealt with by my consideration of the earlier headings. The Mother has demonstrated an entirely proper attitude to X and to the responsibilities of parenthood. I find that the Father has demonstrated an entirely improper and inadequate attitude to X and the responsibilities of parenthood.
Any family violence involving X or a member of X’s family.
The family violence that I have found have been perpetrated by the Father is detailed extensively earlier in these Reasons. That family violence has been perpetrated by the Father against the Mother, and against Mr G who has been a permanent member of X’s household and family group since November 2017. Within the meaning of exposure to family violence in section 4AB of the Act, the Father has on repeated occasions exposed X to family violence.
If a family violence order applies, or has applied, to X or a member of X’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order; the circumstances in which the order was made; any evidence admitted in the proceedings of the order; any findings made by the Court in, or in the proceedings for, the order; and any other relevant matter.
Since the parents separated on 12 November 2013 there have been four ADVOs made for the protection of the Mother from the Father, including an expansion of an existing order and a 12 month extension of an existing order. Additionally, AVOs have been made for the protection of the maternal grandmother from the Father and for the protection of Mr G from the Father.
Though they were not persons covered by this consideration, not being members of X’s family, it is relevant in the additional considerations to keep in mind the AVOs made by Courts for the protection of at least two previous partners of the Father, from the Father.
Going along with the family violence orders is the consideration of the Father’s record of convictions for breach of such orders on four occasions (I am carefully not including the charge that was withdrawn on 18 May 2016 at the Local Court at Suburb AL).
The inescapable inference to be drawn from all that is that the Father is a repeat and persistent perpetrator of family violence against his former partners and their family members and that he does not have sufficient respect for the law and the Courts that administer the law to refrain from repeat violations of the criminal law in breaching the orders. This additional consideration reinforces my finding that the Father presents an unacceptable risk to X if she spends time with, or communicates with, him and that there is a high probability that no form of order can be framed to mitigate that unacceptable risk and protect X from exposure to the Father’s antisocial behaviours.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X.
The making of orders as proposed by the Father, or indeed any orders that provide for the Father to spend time with X would be have a high probability of leading to the institution of further proceedings by the Mother in the best interests of X when the Father’s ongoing behaviours impact to the detriment of X.
Though the making of final orders that do not provide for a parent spending time with the child or communicating with the child may often be seen as leading to the institution of further proceedings in relation to the child when the said parent has achieved, or alleges about achieving, a sufficient change of circumstances to revisit the parenting orders, in this matter I find that there is a very low probability of the Father taking any steps to address the issues that have led to my finding that he is an unacceptable risk to X. I find that final orders that do not include time and communication between the Father and X are orders that are least likely to lead to the institution of further proceedings in relation to X.
Any other fact or circumstance that the court thinks is relevant
My consideration above of the father’s previous AVOs and breach convictions relating to previous partners is such a circumstance.
I consider that it is very important, and in X’s best interest with that interest as the paramount consideration, that the Father read here that I took into account every scrap of evidence admitted in the final hearing - including every word of his evidence contained in his trial affidavit, his Notice of Risk, the documents he tendered into evidence and including the three folders of Exhibit R2, all of his evidence in cross examination and all of his submissions to the court on 8 February 2021 - when I say that my finding that he presents an unacceptable risk to X, and the consequences that flow from that finding, are entirely at his fault and of his making, not the Mother’s.
SECTION 61DA – THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY WHEN MAKING PARENTING ORDERS - WHAT IS THE APPROPRIATE ORDER IN RELATION TO PARENTAL RESPONSIBILITY?
The presumption set out in section 61DA of the Act that when making a parenting order in relation to X, the Court must apply a presumption that it is in the best interests of X for her parents to have equal shared parental responsibility for her does not apply in this matter in consequence of the finding that the Father has engaged family violence.
In view of the evidence, I find that it would be a cruelty to require by the making of an order that the parents have equal shared parental responsibility for X that the Mother comply with the obligation under the legislation and require that major long-term decisions for X be made jointly by the Mother and the Father, requiring the Mother to consult the Father and make a genuine effort to come to a joint decision. Beyond being a cruelty to the Mother, it would be an empty exercise as the parties are unable to communicate effectively together – the Father because of his attitude to the Mother, and the Mother because of her past lived experience of the Father. Without the ability to communicate effectively for the purpose of consulting and making a genuine effort to reach a joint decision about an issue, an order for equal shared parental responsibility is useless and an invitation to conflict.
In light of the findings I have made in consideration of the primary and additional considerations in section 60CC of the Act, I find that the appropriate order to be made is that the Mother have sole parental responsibility for X without a need to consult with the Father in relation to any issue going to X’s long-term welfare or consider his views.
As no order will be made for the parents to have equal shared parental responsibility for X, I do not need to consider the matters set out in section 65DAA of the Act.
As almost an encapsulation of the matters that lead to the findings in these Reasons is the following extract from the Father’s cross examination by Mr Campton SC:
MR CAMPTON SC: Sir, look at 405 at the bottom:
“What are you, the cum thief? You used my seed to make a baby for another man’s family. She is my family, not yours and no one else’s.”
And over the page:
“I’m not trying to control you; I want to come home. There’s a difference.
Sir, what you’re doing, continually, is just harassing my client again and again and again, trying to control her behaviour, aren’t you?
FATHER: I don’t agree.
MR CAMPTON SC: Sir, you will see on page 410 that’s the commencement of the 85 text messages that you sent on one day. Do you remember that?
FATHER: Yes, I do. Yes. And the reason for that is because your client refuses to follow her orders.
MR CAMPTON SC: So what you do is engage in conduct to try and coerce my client into doing what you want, don’t you?
FATHER: By nature, I am a law enforcer. I – I – I am only looking out for the interests of my daughter when I enforce an order that is made by the court.
HIS HONOUR: You understand that you don’t enforce the orders, do you?
FATHRE: Well, this is the problem. Nobody does.
HIS HONOUR: You understand that you don’t enforce the orders, don’t you?
FATHER: Yes, your Honour.
MR CAMPTON SC: You’ve actually kept some of my client’s underwear, haven’t you?
FATHER: No.
MR CAMPTON SC: Page 9 of the second tab – or third tab in the exhibits, an email. This is an email from you to my client, 25 December 2016. So let’s just put that in time. This is three years after you’ve separated:
You seem to forget that when you pass away, she will be staying with me. That’s why it’s important. Your two-minute fling won’t exist when you unexpectedly pass on. Consider this and consider your selfish actions, foolish.
You sent that email, didn’t you?
FATHER: Yes.
MR CAMPTON SC: Sir – and what you were doing in that email was threatening my client’s life, weren’t you?
FATHER: No.
MR CAMPTON SC: There can be no other construction to it, can there?
FATHER: There can be. [Ms Wolfe] is a smoker. Was a smoker.
HIS HONOUR: And why would that make her unexpectedly pass on?
FATHER: Well, I’ve seen people just unexpectedly appear with terminal cancer in my lifetime. I – I just assume that, you know, it might be something that we may have to look out for since her habit was – it was quite – quite frequent. I – I – I saw her smoking many cigarettes.
HIS HONOUR: Unexpectedly contracting cancer is not unexpectedly pass on, is it?
FATHER: I don’t agree.
MR CAMPTON SC: Can you look at page 244 of the text messages. Have you found that?
FATHER: Yes.
MR CAMPTON SC: [Ms Wolfe] is saying to you:
But how many times do I have to tell you I’m not in love with you. I don’t want to be with you. Just move on, [Mr Varni]. God, it has been ages. I don’t know why you think we’re still getting back together.
And your response is:
Why do you want to live this way? It will hurt your daughter and the strangers you meet. I’m always going to be there. You will never have something meaningful with another man, and your daughter will never feel like her life is perfect.
MR CAMPTON SC: What you’re trying to do there is again coerce my client into reconciling with you well after you’ve separated, isn’t it?
FATHER: Yes. Yes, that’s what I was doing.[47]
[47] Transcript 27 August 2019, pages 186-187.
CONCLUSION
In light of the findings set out in these Reasons, I find that the parenting orders proper to be made for X with her interests as the paramount consideration are that her Mother have sole parental responsibility for her, that X live with her Mother and that she not spend time with or communicate with her Father - such phrasing does not indicate that the orders bind X by preventing her having time with or communicating with her Father - but they are parenting orders made for the benefit of children and provide rights to children.
I find that it is appropriate that an order be made, which was proposed by the Mother’s minute of order in Exhibit A1, that the Mother do all things necessary to provide to the Father’s postal address, a photograph of X one month prior to Christmas and a mid-year photograph and to keep the Father advised as to X’s progress at school, though she is not required to identify any school or residential address, and that the Father be permitted to forward cards and gifts to X for Easter, X’s birthday and Christmas each year by forwarding same to a postal address provided by the Mother.
I also find that it is proper in X’s best interests to grant the injunction sought by the Mother restraining the Father from approaching or attending or contacting X’s school, any other school X may attend from time to time, and any place that X attends for sport or extracurricular activities, and that such injunction be an injunction for the personal protection of X under section 68B of the Act and be expressed as such for the purposes of section 68C.
For the same reasons, I find that it is proper and in X’s best interests to grant the injunction sought by the Mother restraining the Father from approaching the Mother or X and restraining him from harassing and/or intimidating the Mother or any member of the Mother’s household, and that such injunction be an injunction for the personal protection of the Mother and of X under section 68B of the Act and be expressed as such for the purposes of section 68C.
I find that it is proper to make the orders sought by the Mother that she be authorised to do all things necessary to apply for, and maintain and keep updated, a current Australian passport for X without the consent of the Father, and that X be permitted to travel with her Mother outside the Commonwealth of Australia without the consent of the Father, and for the Mother to retain possession of X’s Australian passport while she is a child under the Act.

In keeping with the findings at the commencement of the final hearing, I will make a formal declaration of parentage pursuant to section 69VA of the Act that the Father is the natural father of X.
I will make a formal order that the orders of the court made on 31 December 2013 are discharged. It should be noted that the making of final orders in a matter discharges all existing interim orders in the matter, both as a matter of law,[48] and pursuant to Rule 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
[48] Sadasivam & Seshan [2019] FamCAFC 76; Keskin & Keskin [2019] FamCAFC 236; Darley & Darley (No 4) [2021] FamCAFC 54.
THE COSTS APPLICATIONS
The Mother makes application in her Minute of Order in Exhibit A1 that within 21 days of final orders, the Father pay to the Mother an amount equal to half of the fees paid to Dr D for preparation of his Report.
The order appointing Dr D as “single expert to enquire into and report upon the issues identified in s.60CC of the Act” was made by the court on 30 July 2018 and was expressed to be made “Pursuant to Chapter 15 of the Act”. The reference to “the Act” in the order was incorrect, the clear intention of the court being a reference to Chapter 15 of the then applicable Family Law Rules 2004 which dealt with “Evidence”, and in particular to Part 15.5 thereof that dealt with “Expert Evidence”. Rule 15.47(1) provided that “the parties are equally liable to pay a single expert witness’ reasonable fees and expenses incurred in preparing a report.” No order to the contrary of that rule was made in the proceedings. The Mother gives evidence in paragraph 113 of her trial affidavit that the fee paid to Dr D for preparation of the report was $16,500 and that the whole amount was paid on her behalf by Mr G.
I find that it is appropriate to make an order that the Father pay to the Mother $8,250 within 21 days of the date of orders as that obligation is founded in Rule 15.47 of the then Rules of Court and it is not necessary to consider that matter under section 117 of the Act.
The Mother also makes an application in her minute of order that the Father pay to her within 21 days of the date of final orders her costs of, and incidental to, the listing on 4 March 2019 as agreed or assessed. That was the day that the matter was listed for a Compliance Check before Judge Harper (as His Honour then was) and the orders for DNA parentage testing were made and the final hearing dates of 19 to 21 March 2019 vacated. Notably, on that day the Mother’s costs of that day were reserved.
Issues of costs under the Act are governed by section 117 which provides in subsection (1) that as a general rule each party to proceedings shall be his or her own costs. Under subsection 117(2) if the Court is of the opinion that there are circumstances that are justified in doing so, the Court may, subject to the considerations in subsections 177(2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs as the Court considers just. In this matter, an application for costs between the parents does not involve consideration of any of the subsections other than 117(2A).
Subsection 117(2A) provides as follows:
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle proceedings in the terms of any such offer; and
(g)such other matters as the court considers relevant.
Pursuant to section 117(2) a finding by the Court of circumstances that justify the making of a costs order is the necessary preliminary to the making of an order, and beyond that there is no additional or special onus on an applicant for a costs order.
If, having considered the matters referred to in subsection 117(2A) the Court is of the opinion that the circumstances justify a departure from the usual rule that each party bear his and her own costs, then the Court must determine the quantum of the costs to be awarded.
In Penfold v Penfold (1980) 144 CLR 311 at 315 (per Stephen, Mason, Aickin and Wilson JJ) (“Penfold”) the High Court discussed section 117 of the Act and said:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the 2 provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgement under appeal that an order can only be made under s. 117 (2) in “a clear case”.
The Court’s discretion in relation to costs is broad and the considerations listed in subsection 117(2A) are not restrictive.[49] There is nothing to prevent any one factor in this subsection being the sole determinant for an order for costs.[50] It is a matter of the weight to be accorded to each factor by the Court, as no one factor listed in section 117(2A) prevails over another.[51]
[49] Penfold v Penfold (1980) 144 CLR 311.
[50] PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 at 130.
[51] Medlon and Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664.
Costs are compensatory not punitive in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.[52]
[52] Latoudis v Casey (1990) 170 CLR 534.
The Full Court of the Family Court of Australia recently summarised the basic law on costs orders under the Act in Sfakianakis v Sfakianakis [2019] FamCAFC 54:
[9]The ordinary position in proceedings under the Family Law Act 1975 (Cth) (the Act) is that each party is to bear his or her own costs (s 117(1)). Where the Court is of the opinion that circumstances justify it in doing so, the Court may make such order as to costs as it considers just (s 117(2)). Thus, an order may be made for the payment of costs on an indemnity basis, although such orders are exceptional (In the Marriage of L and C L Kohan (1992) 16 Fam LR 245 at 259; (1993) FLC 92-340 at 79,614; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCa 1178; D and D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64).
[10]It is, however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words “such order as to costs … as the court considers just” permit the Court to fashion an order that is apt to the circumstances. One such well-known example is assessment on a trustee basis, which is more generous than party and party costs, but falls short of an indemnity. Orders for a partial indemnity or for a particular period are obvious possibilities. The Court may also fix costs in a particular sum, taking account of all relevant circumstances; that type of order too is neither one for party and party costs nor an indemnity costs order. For convenience, in these reasons we shall refer to such orders as a “special costs order”.
[11]Decisions as to the appropriate basis for any costs order are, of course, guided by principle. In applications under s 117 of the Act for costs of whatever kind, the Court must have regard to the considerations set out in s 117(2A). Paragraph (g) requires the Court to take into account any relevant matter.
[12]As the decision in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233–4; 118 ALR 248 at 256–7; 28 IPR 561 at 569–70 (Colgate-Palmolive) and the extensive authorities referred to in it make clear, the categories for the making of special costs orders are not closed and may be made whenever the particular facts and circumstances warrant it. That position is reflected in s 117(2) of the Act.
[13]It is necessary to consider first whether there should be an order for costs before turning to whether the quantum of the costs should be left to the application of the scale contained within Sch 3 of the Rules or assessed or fixed on some other basis.
[40]……. the Court is not bound only to make an order on a party and party basis or on an indemnity basis. It may take an intermediate course if that is the order that is just in all of the circumstances. A special costs order may be assessed by reference to a particular period of time or set of events. Alternatively, the Court may fix a sum for costs that exceeds party and party costs but falls short of an indemnity.
On the evidence at hearing, the relative financial circumstances of each of the parents is that the Father is in full-time employment and financially independent, whilst the Mother has some part-time employment and is largely financially dependent upon Mr G, and in particular for meeting the financial cost of the proceedings.[53]
[53] Mother’s trial affidavit paragraph 113.
Neither party is in receipt of assistance by way of legal aid.
I have already made findings about the conduct of the Father in these proceedings in relation to his seeking an order for DNA parentage testing in circumstances where he had no doubt, and no grounds to doubt, that he was the natural father of X. The whole issue and parentage testing operation was a waste – and in particular as relevant to this application – a waste of the Mother’s legal costs of and incidental to the court appearance of 4 March 2019.
In a large sense, the Father was wholly unsuccessful in that part of the proceedings that related to the parentage testing, his paternity having been confirmed by the testing with the result that a declaration as to parentage will be made.
I find on the basis most particularly of the Father’s conduct in that part of the proceedings the subject of the costs application and that he was wholly unsuccessful therein, it is proper that an order be made that the Father pay the Mother’s costs of, and incidental to, the listing of 4 March 2019.
In relation to quantum, I find on the basis of the information available the Court that the appropriate order to be made is that the quantum of such costs be as agreed or assessed, in accordance with the orders sought by the Mother.

I certify that the preceding two hundred and eighty-four (284) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 15 July 2022

File number(s):	SYC 7645 of 2013
Judgment of:	JUDGE MORLEY
Date of judgment:	15 July 2022
Catchwords:	FAMILY LAW – parenting – where Mother seeks no time and no communication between child and Father – where Father seeks time in line with previous parenting agreement made between the parties – family violence – assessment of unacceptable risk – not in the child’s best interests to spend time with or communicate directly with her father – costs
Legislation:	Family Law Act 1975 (Cth) – sections 4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAB, 68B, 68C, 69R, 69Q, 69S, 69VA, 117 Crimes (Sentencing Procedure) Act 1999 (NSW) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	A & A & The Child Representative [1998] FamCA 25 Darley & Darley (No 4) [2021] FamCAFC 54 Grella & Jamieson [2017] FamCAFC 21 Harridge and Anor & Harridge and Anor [2010] FamCA 445 Johnson & Page [2007] FamCA 1235 Keskin & Keskin [2019] FamCAFC 236 Latoudis v Casey (1990) 170 CLR 534 M v M (1988) 166 CLR 69 Medlon and Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 Napier & Hepburn [2006] FamCA 1316 Penfold v Penfold (1980) 144 CLR 311 Sadasivam & Seshan [2019] FamCAFC 76 Sfakianakis v Sfakianakis [2019] FamCAFC 54; 59 Fam LR 419 W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892
Division:	Division 2 Family Law
Number of paragraphs:	284
Date of last submissions:	8 February 2021
Date of hearing:	26, 27, 28 August and 8 February 2021
Place:	Sydney
Counsel for the Applicant:	Mr Campton of Senior Counsel
Solicitor for the Applicant:	Swaab Attorneys
Counsel for the Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Mr Sperling
Solicitor for the Independent Children's Lawyer:	Clayhills Escobar Solicitors

SYC 7645 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS WOLFE Applicant
AND:	MR VARNI Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE MORLEY
DATE OF ORDER:	15 JULY 2022