This is a story about how a group of lawyers, most of them judges, who sit on the Judicial Commission of NSW hold other judges to account.

It’s done mostly in secret, using highly subjective and uncertain criteria, and the end result is shrouded in darkness. Even after a finding is made against a judge, the law says the commission will not make that finding public. It is a criminal offence for anyone at the Judicial Commission to utter a word about these findings. This is a very bad law.

It’s only when a finding against a judge is referred to what is called the conduct division of the commission that a sliver of sunlight shines on the commission’s work.

This means that there is a category of findings against sitting judges by the commission that we will never know about. This secrecy means we can’t know about a judge’s alleged misbehaviour on the bench, as decided by the commission. It also means we can’t judge the judges for their findings against other judges – findings that are set in stone, leaving a secret but permanent black mark against a sitting judge.

When a finding is made against a judge, even if it is not referred up to the conduct division, there are often consequences for the sitting judge. Anywhere from a grovelling apology to the head of their court to a stint in re-education camp. Or both, and more. We kid you not. And all of this happens far away from the public eye.

This secrecy invites serious questions, starting with: What does the NSW Judicial Commission have to hide? Could it be that this body is using its position as apex judicial predator to impose some form of ideological purity on judges? We are also entitled to ask about those who make the complaint that kicks off these findings. The relevant legislation allows any person to make a complaint. It doesn’t have to be a party to the court matter but can be any officious bystander – even someone who has a grudge against a judge or is acting as an ideological vigilante. Many complaints are tossed out, but not all of them.

On that note, this is also a story about how apprehended violence orders are not always used for their intended purpose.

Protecting women (and men) from the evil scourge of domestic violence should be one of society’s highest priorities. It’s why there is a system in place for police and the courts, depending on the state or territory, to issue AVOs. It’s why we have new laws against coercive control that police and the courts take very seriously.

Two things can be true at once. Despite the important purpose of AVOs and other similar orders, Inquirer has been told about rising concerns that AVOs are being used not as a form of protection but as something entirely different – and improper. Lawyers who work in family law have told Inquirer that it is not uncommon for women to use applications for AVOs as strategic tools to gain legal advantage in messy family law disputes.

This means there is a category of victims that get very little attention. Anecdotal evidence suggests they are mostly men whose liberties and rights are restricted when a bogus allegation of apprehended violence leads to an AVO.

Most concerning, these victims are prevented from seeing their children because of the lie. This sets off other lasting consequences for families. Once a father has been successfully prevented from seeing their children for a period, family law will often favour the status quo when deciding parenting orders, meaning the mother benefits permanently even if the basis for the AVO was false. There is also a provision in the Family Law Act that means AVOs and similar orders are taken into account in property settlements.

The use of AVOs for legal advantage is not uncommon because there are no penalties, in reality, for women who lie about being in fear of violence. Worse, there are concerns that some lawyers are advising their female clients to apply for an AVO with no evidence of apprehended violence simply to gain legal advantage.

These two stories are troubling in their own right. When they collided last year, the result was even more disturbing.

In a NSW local court last year, a couple whose relationship ended several months earlier were fighting over an interim AVO against the husband, the father of the couple’s two small children. Before the court case, the couple had agreed to a shared parenting arrangement. That ended soon after the woman applied for an AVO. Police issued an interim AVO to protect the woman and the children.

When the matter came to court last year, local court judge Roger Clisdell had a formal application in front of him that said the woman “attended … police station to report a history of coercive control and other behaviours by the defendant with an escalation in behaviour since their separation … The matter remains with police and is pending investigation.”

The identity of both parties are on the court record but Inquirer has chosen not to name them. This story is about a system open to abuse.

There were suggestions in court that the mother had agreed to consent to the children being removed from the AVO so the father could see the children according to the couple’s shared custody arrangement. But she changed her mind, opposing any variation to the AVO to stop the father seeing his children. The question for Judge Clisdell was this: What evidence was there to warrant a variation to the AVO so that the father could see his two young kids?

According to the transcript, the policeman in court appearing on behalf of the mother, acknowledged that the AVO application provided “quite scant detail”.

Running to just 8½ lines, the application claiming “a history of coercive control” said the father “has begun to contact her employer to negatively impact her mental and financial wellbeing”.

“She is extremely fearful of retribution and a further escalation in behaviour for reporting the incident to police.”

Before deciding the matter, Judge Clisdell said: “I can think why (the children) are on the order (for an interim AVO), it’s called a tactical approach in family law matters … It’s not uncommon, and I’ve been saying it for most of the time I’ve been on the bench, which is coming up for 18 years now, that tactical AVOs were very common when I practised in family law back in the 1980s, 90s and early 2000s, and this has all the hallmarks on what’s alleged. They’ve separated, they’ve got (shared) custody and suddenly, she starts saying, ‘Oh, there’s coercive control and l want the children not to go near him’.”

According to the transcript, the judge also said the court would give the mother “the opportunity of saying what the urgency is in relation to the children”.

The transcript does not show what else the judge apparently said. Inquirer has been told by a person who was in the local court that day that Judge Clisdell added caveats about the specific case he was hearing in addition to his general observation about the misuse of AVOs.

The person recalls the judge saying “I might be wrong” and “there may be something I don’t know about and we’ll find out”.

The woman gave evidence later that day. She offered little detail about her fears of psychological harm. Importantly, when asked, she said: “I have no fears of physical harm.”

The judge decided there was not enough evidence to stop the father seeing the children. “These are always difficult situations,” Judge Clisdell said. Referring to the shared custody, he said: “I have got to somehow restore that at this stage because there is no physical threat to the children and though there is some concern about psychological harm, these (interim) orders are primarily designed to provide protection from violence.”

A person in court that day – not one of the parties – complained to the NSW Judicial Commission about Judge Clisdell’s comments about tactical AVOs. Inquirer understands that in April this year the commission upheld that complaint, although it did not think the matter warranted a referral to the conduct division.

Still, Inquirer has been told it is common for the commission to demand something akin to re-education camp for judges they reprimand, overseen by the relevant head of jurisdiction.

Was this Judge Clisdell’s fate? Neither he nor the Chief Judge of the Local Court of NSW, Michael Allen, or the NSW Judicial Commission will say. In fact, each of them declined to answer any of Inquirer’s questions. So much for open justice when it comes to the secretive work of the NSW Judicial Commission.

Interestingly, when the dispute about the AVO returned to the local court this year, police withdrew the AVO. It is not unreasonable to wonder whether that was done for lack of evidence once the investigation had been completed.

Nor is it unreasonable to ask the follow-up question: Was Judge Clisdell correct to point out that AVOs are sometimes used for tactical reasons?

It’s a pity the NSW Judicial Commission, a body headed by NSW Supreme Court Chief Justice Andrew Bell, was so keen to shoot the messenger that it didn’t bother to wait for the final outcome of the AVO.

Canberra-based Anthony Williamson SC regularly appears in complex AVO matters in NSW and in similar matters involving their equivalent, called family violence orders, in the ACT. He says AVOs and FVOs are important tools in preventing harm and violence against vulnerable people.

“However, the critical question is not whether AVOs/FVOs should be available; rather, the question is whether the current system has struck the correct balance, and whether it currently causes too much collateral damage to innocent parties in the pursuit of protecting those who genuinely need protection.”

The respected barrister says most legal practitioners who work in this area will readily acknowledge that “tactical AVOs/FVOs are commonly sought to advance a litigant’s case in the Federal Circuit and Family Court of Australia”.

“Abuse of the system is widespread,” Williamson tells Inquirer. He says most lawyers “muse over how AVOs/FVOs are dished out by the courts like confetti”.

According to the NSW Bureau of Crime Statistics and Research, 67,319 apprehended domestic violence orders were made from July 2023 to June 2024, a 20 per cent increase from the 48,241 orders made from July 2019 to June 2020.

These orders are critical tools to protect those who fear domestic violence, but Williamson says an interim AVO or FVO can be obtained on the most slender evidentiary basis.

“The rules of evidence are often not applied to such proceedings, meaning all manner of untested hearsay and opinion evidence can be admitted against a respondent … resulting in parents having their children taken from them, or people being kicked out of the home they own with nowhere else to go, without having an opportunity to first be heard in court.”

Williamson has seen how the “status quo” principle in the family law system means that the courts are slow to disrupt existing child custody arrangements, which are already in place when a case first comes before it. “By obtaining an interim AVO/FVO which prohibits one parent from having contact with their children, the other parent automatically has a head start in the (family law) litigation.”

The top silk says there is an “unfortunate misunderstanding” among police, local court judges and magistrates about what coercive control is and is not.

“There is substantial guidance from superior courts that the mere fact of there being arguments or disagreements, even spirited ones, is not coercive control.”

Yet Williamson says AVOs and FVOs are frequently made on this misconceived basis alone.

“Even when police officers privately believe the complainant may be untruthful or embellishing, they are often too scared to call out this behaviour, afraid of being criticised as having antiquated attitudes to domestic violence. They then proceed with an AVO application or lay criminal charges anyway.

“I have been involved in both AVO/FVO and criminal cases where the complainant has positively been proved to have made false allegations, lied to the police or court, and perverted the course of justice, only for police to refuse to take any action.”

Williamson says authorities don’t act because they argue “it sends the wrong message” to real victims and might have a chilling effect on them coming forward. Williamson disagrees.

“Genuine victims who are telling the truth have nothing to fear in coming forward,” he says.

“One can be committed to protecting people from domestic violence while at the same time insist on sufficiently cogent evidence in any given case before profoundly life-changing orders are made.”

Williamson says the problems are exacerbated by the fact even the most obviously innocent respondent to an AVO/FVO will usually have to pay tens of thousands of dollars to defend the matter in court and is unlikely to recover their real costs.

Williamson, who has appeared before Judge Clisdell, says the local court judge, who has been on the bench for more than 18 years, is well regarded by legal practitioners in the region.

“He is well known for his direct and no-nonsense approach. He has an ability to see through all the fluff and white noise in a matter and quickly identify what the real issues are.”

The NSW Judicial Commission took a different view when Judge Clisdell exposed to the public what lawyers and other judges know: that AVOs are commonly used for tactical advantage in family law matters.

The commission’s secret censure of Judge Clisdell continues a disturbing practice where this body uses its wide and vague statutory powers, along with its secrecy provisions, to try to enforce a form of ideological uniformity on judges.

Though the numbers of these secret censures are not high, the message to other judges in the tight legal industry is unmistakeable, and the pattern equally clear.

District Court judge Robert Newlinds was castigated by the commission after he called for “lazy and perhaps politically ­exped­ient” referrals of baseless rape accusations to the court to stop. Judge Newlinds was taken off criminal cases, with the commission holding that he should return only after a stint of counselling and when chief judge of the District Court Sarah Huggett “considers it appropriate to do so”.

Newlinds was one of five judges, including District Court judge Peter Whitford, who have accused NSW chief prosecutor Sally Dowling of running meritless rape cases over the past 18 months. After Dowling complained, Judge Whitford incurred the wrath of the Judicial Commission too.

Last month, Federal Court judge Ian Jackman publicly expressed concerns about this pattern. “It saddens me that the Judicial Commission appears to have been used as a way of enforcing uniformity of opinions when the opinion, which was being expressed by the judge … seemed to me an entirely justifiable opinion to hold,” Justice Jackman told the Rule of Law Institute annual dinner. The judge was talking about what happened to Judge Newlinds and Judge Whitford. We can now add Judge Clisdell to the targets of a doctrinaire Judicial Commission.

While its procedural principles recall historical forerunners such as the Star Chamber, a closer precedent for the Judicial Commission may be the Spanish Inquisition.

The commission looks for all the world like a modern Tomas de Torquemada forcing ideological orthodoxy on judges who are simply trying to warn the public about legal injustices.