Danilov & Wynn (No 6) [2025] FedCFamC1F 442 (4 June 2025)

Note: The form of the order is subject to the entry in the Court's records.

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

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

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

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. The Respondent father's legal representatives, Ms Wardle of Counsel and O'Sullivans Law Firm be granted leave to withdraw as the legal representatives of the Respondent father.
2. The father's oral Application for the father's evidence to be heard first is dismissed.

Note: The form of the order is subject to the entry in the Court's records.

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

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

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

These reasons for Judgment were delivered Ex Tempore on 4 June 2025 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.

1. This morning at 11.45 am or thereabouts, Ms Wardle of Counsel, who appeared earlier today for the father, instructed by O'Sullivans Law Firm, sought the leave of the Court to withdraw as the father's Counsel. She also sought leave for her instructing solicitor, Mr O'Sullivan, to withdraw. Ms Wardle informed the Court that there were ethical reasons that she and her instructing solicitors needed to withdraw. Leave was granted. The father then, once again, became a self-represented litigant. That is well familiar to the father, he has been a self‑represented litigant on many occasions throughout the course of these proceedings over the past five years.
2. The father has had, from the Court record, as best I can ascertain, at least four sets of solicitors, including DD Lawyers, they ceased to act on 1 March 2023. EE Lawyers, who were only on the record for eight days. That was between 8 April 2025 and 16 April 2025. EE Lawyers ceased to act on 16 April 2025. FF Lawyers came on the record on 23 May 2025. By 28 May 2025, they were no longer acting. Ms GG (from FF Lawyers) had informed the Court last week at the Case Management Hearing on 26 May 2025 that she had prepared a brief comprising thousands of pages and sent that brief to Counsel, Mr M. Ms GG informed the Court on 26 May 2025 that Mr Mhad read the brief. The father told the Court during argument earlier this week on the hearing of another application that he (the father) had a Zoom conference with Mr M and Ms GG. That's what I understood the father to say. In any event, the upshot of all that was that by Wednesday of last week (28 May 2025) Ms GG and Mr M were no longer the lawyers for the father. Legal Aid then appointed O'Sullivans Law Firm, who came on the record on 29 May 2025. That firm briefed Ms Wardle. Ms Wardle had been involved in the case in 2022 when a trial had to be adjourned through her own illness, so she had some history with the case. But as I said earlier, Ms Wardle, and her instructing solicitors sought and obtained leave to withdraw earlier today. The father finds himself in a situation where he is again self‑represented.
3. The father seeks an adjournment. This had been foreshadowed by the father - there having been an Application in a Proceeding prepared and an affidavit prepared by the father. I indicated earlier they are designated as having been filed on 2 June and now I've listed them for hearing today. Just by way of further background, when the matter came on, on Monday 2 June Ms Wardle and O'Sullivans Law Firm excused themselves from the bar table and waited in the back of the courtroom because they were not briefed to appear for the father in his application that I recuse myself.
4. The hearing of that application took some time, and reasons for judgment were delivered ex tempore, and they will be settled in the fullness of time. After the application for recusal was dismissed - Ms Wardle was keen to spend more time reading the brief and preparing, and she did have that time because I adjourned the matter. One of the benefits of the adjournment was that Ms Wardle had more time to prepare for trial by reading further material, including the tender bundle, which I am informed totals more than 900 pages. Also, of course, the mother had a health incident on Sunday and was unwell and couldn't be here on Monday. So there needed to be an adjournment, and it gave Ms Wardle more time to prepare.
5. Ms Wardle informed the Court earlier today that she had worked late, including last night, and she had read what she needed to read. There was a few more documents she needed to read that had been provided today by the Independent Children's Lawyer - some more documents to be added to the tender bundle. I apprehend from the comments made by Ms Wardle that she was ready to proceed. But then, after conferring with her client, what then happened, as I said earlier, was that Ms Wardle and her instructing solicitor sought and obtained leave to withdraw.
6. The father has applied for an adjournment. He raises some matters in his affidavit designated as having been filed on 2 June 2025. A lot of those matters or some of those matters are no longer relevant because they had to do with the fact that for a period of time the father didn't actually have a lawyer between Ms GG and Mr O'Sullivan. In any event, I note that the tender bundle is large, but the tender bundle has been prepared more than once before. In 2022 one was prepared and ready for trial. In 2023 a tender bundle was prepared in readiness for trial, and it has been updated. The father has appeared before me on many, many occasions in various applications. I consider that the submission made by Ms Hellewell is correct. The father is very, very well versed in the facts, and he is very well versed in the history, and he has a comprehensive knowledge of the evidence, extensive as it is. He has a comprehensive knowledge of the facts, of the evidence and what is in fact in issue in the matter. The father says that it was only today that one issue came to his attention.
7. I should point out here, the father told the Court about various conversations today between himself and his lawyers, who have now withdrawn. I told the father that he did not need to tell the Court about privileged communications with his lawyer, but the father waived that privilege specifically, and I am satisfied he knows what waiver of privilege is because he has studied law. The father told the Court that his own lawyer had said Counsel for the Independent Children's Lawyer had told her that one of the issues would be that the father was fixated on the sexual abuse allegations.
8. The question of the sexual abuse allegations has been an issue since 2019. As to where the truth lies in relation to the sexual abuse allegations is a matter for the Court, and it can only be determined by cross-examination at the final hearing.
9. The father fears something untoward has occurred in the recording of the documentation and in the recording of the conversations that the father said took place between the mother and police officer Mr HH; between the mother and Dr JJ and; between the mother, Dr JJand Mr HH. The father is concerned that what is in the police officer's notebook, which has been produced under subpoena, is not the full story.
10. The father is concerned that the police officer has, either negligently or deliberately, not provided in his notebook a complete history of the conversations that took place at the hospital (the LL Hospital in Region KK). The father is concerned that Mr HH's evidence may be relevant (or will be relevant) in these proceedings.
11. There is, of course, no affidavit from the police officer. His notebook was subpoenaed and produced. The father had further correspondence with the New South Wales Police Service Subpoena Section this year. At no time has the father sought, or has any lawyer on behalf of the father sought, to serve a subpoena upon Mr HH and the same goes in relation to Dr JJ. There is no reason why a subpoena could not have been served on Mr HH and upon Dr JJ by the father himself.
12. The father said he was waiting on legal advice, but the events that occurred in Region KK in 2019 - and those conversations that took place then are now six years old and have been well known to the father since that time. I accept the submission made by Ms Hellewell, Counsel for the Independent Children's Lawyer - this is not a sufficient reason to adjourn the trial. The question of the sexual abuse allegations is not new. It has been referred to many times in the last five to six years of this litigation. Nothing relating to those allegations could be said to take any of the litigants by surprise.
13. I pause to add that anything that has already been made an exhibit is also an exhibit in respect of this application. The family report writer raises one key concern. And that key concern is this: that the children's welfare will be best served by the finalisation of the legal proceedings. Any possible delay has to be looked at in that light as well.
14. The father says he hasn't had a chance to review the family report. The family report writer will not be giving evidence today. There's no reason why the father wouldn't have a chance to read that report tonight.
15. The father is, as I say, well-versed in relation to the facts. He has studied law. He has appeared dozens of times in the Court in this litigation. He has appealed one aspect of the matter, that is the earlier recusal application and other applications at the time. There was one appeal to the Full Court of this Court, there was one special leave application to the High Court. They were conducted personally by the father.
16. In any event, I have to say that the father is eloquent with his submissions. he has always been eloquent with his submissions. He has displayed a comprehensive knowledge of the case. In relation to the father's concern about questions for the family report writer, Ms Hellewell is correct - those matters can be put to the family report writer in cross-examination. In addition, if the father was to prepare a list, say overnight, of questions for the family report writer, I would look at those questions tomorrow morning and hear from the others, and see whether it's appropriate for the Court to issue a direction that they be sent to the family report writer. The other alternative is that matters can merely be put, as they often are, to the family report writer in cross-examination.
17. I am well aware that there is an order made under section 102NA of the Family Law Act 1975 (Cth). It was made many years ago. On four separate occasions there has been lawyers on the record for the father. They've all, for one reason or another, withdrawn from acting for the father. At some point in time the trial has to go ahead. I know that this will mean the father is not personally allowed to cross-examine the mother. Counsel for the Independent Children's Lawyer can cross-examine the mother and will cross-examine the mother.
18. I need to balance all the various considerations. The situation is that there has been four sets of lawyers and at least two barristers that I know of: Ms Wardle and Mr M. In any event, none of those lawyers have indicated to the Court that they're willing to continue to act or to appear for the father. And as I say, at some point in time a line in the sand has to be drawn and the trial has to go ahead. The father has said it may be the case that he could brief Ms Wardle directly. Ms Wardle told the Court less than two hours ago that she had to withdraw for ethical reasons, so I'm not sure how an ethical reason could be undone. But at this point in time it's mere conjecture.
19. I need to make this other point. The lateness of the family report is interesting. On 14 February this year the Court made an order that the family report writer is to consider the psychiatric report of the parents prior to completing the family report. So, the family report writer delayed releasing the report because she was waiting for the psychiatric reports. The mother attended for the psychiatric report interview with Dr MM on video link. But the father, for his own reasons, decided not to be involved in that. So those are matters that will need to be considered by the Court upon hearing the evidence from the father. The non-attendance by the father (at the interview with the psychiatrist) would not have assisted the finalisation of the psychiatric reports. Further, the family report writer was holding on for the psychiatric evidence.[1] It doesn't really make any difference at this point in time why the father did not attend for the interview with the psychiatrist (Dr MM). The father can explain it to the Court in due course.
20. I am satisfied that the father is well and truly able to proceed now. He will not be able to cross-examine the mother. The Court will be able to have all relevant issues raised with the mother by the Independent Children's Lawyer's barrister. Four sets of lawyers were previously involved for the father. All of those lawyers have withdrawn. I wouldn't like to see that repeated. Past experience is the best indicator of what might occur in the future. In any event, at some point in time, the trial has to proceed. The mother was unwell on Sunday, but she has made herself available.
21. I have also taken into account the fact that the father can serve a subpoena on Mr HH and Dr JJ. In any event the father can still make an application about the subpoenas. I am not going to deal with that right now. The only application before me is an adjournment application.
22. In my view, when I weigh all the matters in the balance - including: (a) the evidence of the report writer that the children need finalisation in respect of this litigation and; (b) the view that I have formed that the father is very well versed in all of the facts and the issues and the evidence and will be well capable of attending to all matters relating to cross-examination of other witnesses (not the mother) and; (c) taking all other relevant matters into consideration - the view that I have formed is that in the exercise of my discretion - the application for an adjournment must be dismissed.

1. After the dismissal of the respondent father's application for an adjournment the respondent father made an oral application without notice to reverse the order of the witnesses (the parties) at the final hearing. That application was opposed by the mother and by the Independent Children's Lawyer. That application was dismissed and the reasons for that decision are apparent from the transcript of the proceedings of Wednesday 4 June 2025 at pages 40, 41 (especially at lines 39-46) and 42 (especially at line 1) and, further, the reasons contained earlier herein (relating to the adjournment application) are also relevant to the dismissal of the oral application made without notice to reverse the order of the witnesses (the parties)****.

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

[1] In accordance with Order 6 of the Orders dated 14 February 2025.