Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

IT IS NOTED that publication of this judgment by this Court under a pseudonym Benton & Benton has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. At the outset of these reasons, I indicate as follows:

(a) I intend to give short form reasons pursuant to section 69ZL of the Family Law Act 1975 ("the Act") given that these are interlocutory parenting proceedings.

(b) I have had regard to all material, which has been filed in the interim proceedings; and

(c) I incorporate the exchanges with counsel during the course of the hearing on 11 July 2025, and the transcript which will reveal those matters, and they are incorporated into my reasons.

1. On 5 February 2025, and with the consent of the parties, I made final Orders in respect to the parties' property interests pursuant to Part VIII of the Act. The Court file reflects that the husband was represented by Mr Apostle of counsel at the time of the hearing. On the same day, I made Orders suspending certain provisions of orders made by a Judicial Registrar on 6 September 2023. Those Orders provided that the children live with the mother and spend no time with the father. In lieu of the September 2023 Orders, I made Orders at the request of the parties to the effect that:

(a) The children attend on a therapist nominated by the Independent Children's Lawyer for the purposes of therapy to address and inform the children spending time with the father;

(b) On the conclusion of four occasions with the therapist, but no later than three months from the date of those orders, the children spend time with the father at the B Contact Centre on four occasions of two hours duration at times and dates directed by the contact centre; and

(c) The children and their father be permitted to exchange small gifts and/or cards of modest value.

1. I pause to highlight that the Orders of 5 February 2025 were made not only with the consent of the parties but at the urging of the parties including the mother's counsel. I am reminded by paragraph 22 of the father's affidavit that I was so reluctant to make the orders in circumstances where the competing applications were listed for final hearing that I took evidence from the mother in order to satisfy myself that it was appropriate to make the orders. I also refer to the notation to the orders made that day.
2. On 5 June 2025, the mother filed an application in a proceeding. By that application, the mother sought to:

(a) Suspend the orders requiring the children to attend on a therapist;

(b) Suspend orders for time at a contact centre; and

(c) Suspend the provision, which would have enabled the father to exchange small gifts and/or cards of modest value with the children.

1. The mother's application is supported by an affidavit filed on 5 June 2025. By that document, the mother suggests that on the day after my orders, she suggested to the children that "they should go and speak to someone about seeing their father". On doing so, the mother says that she observed the children "to immediately become hysterical".[1] The mother then says that on 7 February 2025, the children did not want to attend at school.[2] By her affidavit, the mother also alleges that:

(a) The children experienced difficulties sleeping and/or that the male child wet the bed;[3]

(b) The children's behaviour was "dysregulated and angry";[4]

(c) The children have experienced separating from her;[5] and

(d) The children expressed concern that they would be murdered by the father.[6]

1. It is notable that many of the events described by the mother occurred prior to the mother advising the children that they were to attend on a therapist pursuant to my orders.[7]
2. On 28 March 2025, the mother says that she caused her solicitors to "issue correspondence to the family therapist, advising that I would not be in a position to attend".[8] By issuing a letter in those terms, the mother was arrogating to herself the jurisdiction of a judicial officer of the Federal Circuit and Family Court of Australia. Further, and despite the therapist taking measures to ensure the safety of the mother and the children, the mother responded by asserting she would not attend, and that her decision not to do so "was [to] ensure the safety" of her children.[9]
3. During the course of a discussion between Bench and Bar, it was suggested by the mother's counsel that the mother was unsure about her obligations on 28 March 2025. That is, she was unsure whether the orders made by me on 5 February 2025 required the mother to attend with the children or alternatively, whether she was to attend the appointment alone. I reject the mother's assertion on several grounds. Firstly, the mother ought to have been advised, if she did not already understand it, that my orders of 5 February 2025 necessarily required her to do what was necessary to commence the process of therapy. As I indicated on Friday, my orders do not prescribe such an obligation but frankly, it is disingenuous for the mother and her advisors to suggest to me that they did not know what was required by my orders of 5 February 2025. Further, the communications provided to me suggest that it was entirely disingenuous for the mother to suggest that she was concerned about coming into contact with the father. Particularly, the communications passing between the mother's solicitors, the father's solicitors, the Independent Children's Lawyer and Dr D (being exhibit M1) suggest the following:

(a) On 27 March 2025 at 9.25 am, Dr D wrote to the parties' solicitors to advise that she had "spaced the sessions so that there is an hour between the end of one session and the commencement of the next. I will ensure there will be no risk of overlap between the two appointments and hence no contact between them". I pause to note that there is no mention whatsoever of any requirement for the mother to bring the children with her;

(b) On 28 March 2025 at 3.38 pm, Dr D wrote to the mother's legal representatives advising that the father had left her premises and that the mother was to attend alone. What followed was a simple refusal by the mother to do so aided and abetted by her solicitors; and

(c) Lest the mother be confused, on 1 April 2025, Dr D wrote to all parties and the Independent Children's Lawyer to confirm that the mother was to attend alone at first instance.

1. I reject any assertion by the mother or her legal representatives that they were confused by either the terms of my orders made on 5 February 2025, or her obligations as set out in plain English by Dr D.
2. By early April 2025, the mother suggested the eldest female self-harmed.[10] Without minimising the mother's allegations, it appears from her affidavit that the children's dysregulated behaviours and difficulty sleeping continued throughout April and May 2025.
3. The allegations made by the mother bear some resemblance to the allegations which the mother made when interviewed by Mr E on 20 November 2023. Particularly, and on that occasion, the mother asserted that:

(a) The eldest female child suffered from anxiety whilst living with the father and would soil her bed;[11]

(b) The children were worried that the father would kill them.[12]

1. Further and by her affidavit which the mother filed on 9 December 2024 for the purposes of trial, the mother asserted that:

(a) The eldest female child had experienced nightmares about being hurt by the father;[13]

(b) All of the children have been diagnosed with separation anxiety;[14] and

(c) The eldest female child had reported suicidal ideation.[15]

1. For the reasons I have set out, I am not satisfied that the report of Mr F, psychotherapist, such report undated and marked as Exhibit M6, takes the matter any further. Whilst Mr F identifies that the eldest female child has been displaying anxiety issues and that the male child was displaying behaviour atypical of complex post-traumatic stress disorder, it is evident to me that Mr F does not have available to him significant information, which has been filed in these proceedings, and which is frankly relevant to his understanding of the family dynamics. With respect to the balance of exhibits tendered by the mother during the course of the interim hearing:

(a) I am not persuaded that any of the information that is subject to medical notes and/or reports represents information and knowledge which the mother did not have available to her at the time that she consented to the orders of 5 February 2025. Particularly, I reject the submission made by the mother's counsel to the effect that the notes represent a new fact which has come into existence, or which has otherwise been recently discovered; and

(b) The recordings which are the subject of Exhibits M7 and M9 in my mind raise more concerns than the recordings answer. At first blush, the recordings raised, in my mind, some concern about the mother's parental capacity but that will need to be a topic to be explored at trial.

1. Absent parties reaching agreement about interlocutory disputes, the Court should retain control of interlocutory orders, including orders pertaining to management of disputed issues pending a final hearing, as is apposite in this manner (see Woodgate (Trustee) v Northop Hall Pty Ltd [2016] FCA 370; (2016) 341 ALR 132 at [31]-[32] per Rares J).
2. As to the test to be applied to determine whether an interlocutory order should be revisited, in Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 178, the High Court per Gibbs CJ, Aickin, Wilson, and Brennan JJ said:

...Just as an interlocutory injunction continues "until further order", so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust: cf. Woods v. Sheriff of Queensland [(1895) Q.L.J. 163, at p. 165]; Hutchinson v. Nominal Defendant [[1972] 1 N.S.W.L.R. 443, at p. 447]; Chanel Ltd. v. F. W. Woolworth & Co. Ltd. [[1981] 1 W.L.R. 485, at p. 492; [1981] 1 All E.R. 745, at p. 751]. Of course, the changed circumstances must be established by evidence: Cutler v. Wandsworth Stadium Ltd. [[1945] 1 All E.R. 103].

1. Further, and in Vang & Chung (No 4) (No 6) [2024] FedCFamC1F 604 at [26], Justice Harper quoted with approval the statement of Brereton J in Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 at [14]:

...the general rule is that interlocutory relief is not to be reconsidered if all that is involved is a review on the same facts as prevailed when it was originally granted or declined or on facts which ought then reasonably have been in contemplation, but that if new facts have emerged which may affect the arguability of the case for final relief or the balance of convenience, then the grant of interlocutory relief may be reconsidered. If it were not so, it would be open to a defendant to make repeated applications for variation of an interlocutory injunction, requiring consideration of the matter de novo, for no stronger reasons than dissatisfaction with the previous decision

1. I am not satisfied that the facts deposed to by the mother are new facts which render the enforcement of my 5 February 2025 orders unjust.
2. Section 60CA of the Act provides that the Court is to consider the best interests of the children as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Part VII, being to ensure that the best interests of the children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
3. Section 60CC(2) of the Act identifies a matter that the Court is to take into account in determining what is in the best interests of the child, those being:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

1. Having regard to the legislation, and even if my analysis to the effect that the mother has not identified new facts which warrant a revisiting of my interlocutory orders is incorrect, I do not consider that any meeting between the children and Dr D will compromise the safety of the children.
2. Turning to the competing financial applications. On 10 June 2025, the husband filed an initiating application. By that application, the husband seeks orders that pursuant to section 79A of the Act, the orders made by me on 5 February 2025 be set aside. That application is opposed by the wife, who seeks an order that the section 79A application be summarily dismissed. Accordingly, I will list that application for trial.
3. Finally, and at a hearing on 11 July 2025, the father made an oral application to discharge the Independent Children's Lawyer in these proceedings on the grounds of apprehended bias. I dismissed that application and will deliver written reasons in relation to the topic shortly.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

[1] Mother's affidavit filed 5 June 2025, paragraph 6.

[2] Mother's affidavit filed 5 June 2025, paragraph 7.

[3] Mother's affidavit filed 5 June 2025, paragraph 8.

[4] Mother's affidavit filed 5 June 2025, paragraphs 9 and 11.

[5] Mother's affidavit filed 5 June 2025, paragraphs 15and 16.

[6] For example, Mother's affidavit filed 5 June 2025, paragraph 22.

[7] Mother's affidavit filed 5 June 2025, paragraph 47.

[8] Mother's affidavit filed 5 June 2025, paragraph 54.

[9] Mother's affidavit filed 5 June 2025, paragraph 56.

[10] Mother's affidavit filed 5 June 2025, paragraph 73.

[13] Mother's affidavit filed 9 December 2024, paragraph 111.

[14] Mother's affidavit filed 9 December 2024, paragraph 114.

[15] Mother's affidavit filed 9 December 2024, paragraph 114.