DICKENS & DICKENS

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS

[2018] FamCA 1109

FAMILY LAW – CHILDREN – Parenting – Final – Where the children are aged 15 and 17 years old – Where they have not spent time with the father for over four and five years, respectively – Where the children express clear and strong views that they do not want to spend time or speak with their father – Where there is a history of family violence and protracted litigation – Where orders are made in accordance with the children’s wishes – Where the children are to live with their mother and she have sole parental responsibility.

FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings – Where the mother seeks an order pursuant to s 102QB(2)(b) of the Family Law Act 1975 (“Cth”) prohibiting the father from instituting further proceedings without the leave of the court – Where the father frequently instituted and pursued proceedings without reasonable grounds – Where an order is made in the terms sought by the mother.

Family Law Act 1975 (Cth)

Rice and Asplund (1979) FLC 90-725

APPLICANT:

Ms Dickens

RESPONDENT:

Mr Dickens

INDEPENDENT CHILDREN’S LAWYER:

Mr Moylan

FILE NUMBER:

SYC

739

2010

DATE DELIVERED:

20 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 - 27 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Paddy Moylan Family Lawyers

Orders and Notation

All previous parenting orders are discharged.
The mother have sole parental responsibility for the children, B, born … 2001 and C, born … 2003 (“the children”).
The children live with the mother.
To avoid doubt:
(a)The mother is at liberty to solely arrange, procure and hold passports for the children and the father’s consent to the issue of passports for the children shall not be required;
(b)In the event that the children’s names are on the Airport Watchlist, the names of the children be removed from the Airport Watchlist; and
(c)The mother be at liberty to travel outside of the Commonwealth of Australia with the children.
There be no defined order for the father to spend time with the children, noting that the children are at liberty to spend time or communicate with the father as they see fit.
I note that, the Independent Children’s Lawyer will telephone the children upon the making of these orders to explain the orders and attend to any queries the children may have in relation to the orders.
The Independent Children’s Lawyer’s application for costs be dismissed.
I dispense with any rule not complied with in respect of the application by the mother and the Independent Children’s Lawyer for a vexatious proceedings order against the father.
Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), the father is prohibited from instituting proceedings for orders under that Act in an Australian court without leave under s 102QE(2) of the Act provided that this order does not apply to any appeal to the orders made this day.
Any outstanding application is otherwise dismissed and the matter is removed from the active pending cases list.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 739 of 2010

Ms Dickens

Applicant

And

Mr Dickens

Respondent

REASONS FOR JUDGMENT

introduction

This is a second final parenting hearing in relation to the two children of the parties’ relationship, B, born in 2001 (17 years of age) and C born in 2003 (currently aged 15 years of age) (Collectively, “the children”). The parties have been engaged in protracted litigation over a long period of time.
In 2011, the parties had had an earlier parenting hearing conducted over five days before Federal Magistrate Sexton (as she then was). Her Honour made parenting orders on 20 December 2011 that the mother have sole parental responsibility (subject to notice conditions) and that the father spend time with the children on alternate weekends, half of the school holidays, birthdays and other important days. The father was ordered to attend counselling for a minimum of 12 months to address issues concerning his emotional health raised in the expert report. The orders provided that upon engaging in counselling for that period, the father could spend further time with the children. As discussed below, those orders did not resolve the parties’ dispute on a final basis.
B has not seen his father since 23 April 2013 (a period of over five years). C has not seen his father since 18 March 2014 (a period of over four years). The court is called upon again to make final parenting orders that are appropriate and in the children’s best interests.

applications

The mother, in her affidavit of 14 July 2017, seeks the following orders:
(a)For the children to live with her and for her to have sole parental responsibility;
(b)That the children be permitted to engage with the father at a time of their own choosing;
(c)The children be allowed to apply for passports, without the requirement of the father’s consent;
(d)The children’s names be removed from the Airport Watchlist and she be permitted to live with the children anywhere in Australia;
(e)The father be restricted from being able to come within 250 metres of the children’s home or school, her home or place of employment and the mother’s current partner’s place of residence; and
(f)The father be restricted from lodging any new applications or appeals with the Family Court of Australia.
In the event that an order was made that the children live with their father, the mother would seek an order that they be permitted to spend time with her in accordance with their own choosing.
Initially, the father sought the following orders:
(a)For the children to live with him and for him to have sole parental responsibility;
(b)That the children have no contact with the mother for a period of two years, after which time, provided the mother undergoes parenting counselling, they spend supervised time with the mother each alternate Sunday (Given [B’s] age, this order would only apply to [C]);
(c)The children’s names remain on the Airport Watchlist;
(d)The mother’s current partner be restrained from having any contact with the children or communicating with them by any means; and
(e)The mother be restrained from submitting the children to any psychiatric, psychological or medical examinations and be restrained from requesting police welfare checks or making reports to FACS.
During cross examination, the father made it clear that he was abandoning his primary application for the children to be placed with him and for the children to have no time with their mother for a period of two years. His application during the final part of the hearing was for an order that the children spend time with both parents on a week about basis. Notwithstanding this, the father still seeks the balance of his original application, including that the mother’s current partner have no contact with the children.

Documents relied upon

The mother relies upon her affidavit filed 14 July 2017 and an affidavit of her current partner, Mr Levine filed on the same date.
The father relies upon an affidavit filed 17 July 2017, together with extensive annexures to that affidavit and a tender bundle (Exhibit 64) that is associated with that affidavit (documents in excess of two ring binders). The father also relies on an affidavit by Dr II, the father’s treating psychologist, filed 14 July 2017.
During the hearing, the father also provided over 600 pages of additional material including the 411 page, House of Representative Standing Committee on Social Policy and Legal Affairs report titled, “A better family law system to support and protect those affected by family violence”, to which the father made reference from time to time in the context of asserting that he was a victim of a broken system. The father himself said that he had made submissions to that inquiry.
The father also sought to rely upon affidavits by Ms N filed 12 May 2014, 22 October 2013 and 6 August 2013 and a transcript of evidence given by Ms N in interim proceedings before Justice Johnston on 4 September 2014. At the time that Ms N provided this evidence at the request of the father, the father said that they were living in a close intimate personal relationship but not a de facto relationship. The father has not been in that relationship with Ms N since about mid-2017. On 8 February 2018, I made the following notation:
5. The father has indicated that [Ms N] will no longer be a witness in his case. He has placed on the record an allegation that that is because she was intimidated and abused by [Mr Levine] since 2014 and most recently in December 2017. Any order relating to [Ms N] giving evidence by electronic means is discharged.
The mother objects to the evidence of Ms N being before me. The Independent Children's Lawyer, whilst not formally objecting, made a submission that without Ms N being able to be tested upon the evidence, the weight upon which it could be given was limited.
I allowed the father to read Ms N’s evidence in his case but given that she could not be tested upon that evidence, I accept that it must be given limited weight.

short history

The father was born in 1964 and is currently 54 years of age.
The mother was born in 1972 and is currently 46 years of age.
The parties married in 1995.
The parties’ first child, B, was born in 2001 and is currently 17 years of age.
The parties’ second child, C, was born in 2003 and is currently 15 years of age.
The parties separated under one roof in October 2008, with the mother permanently vacating the former matrimonial home in July/August 2009.
The parties divorced in April 2010.
In 2010, the mother commenced a relationship with her now current partner, Mr Levine (“Mr Levine”).
On 20 December 2011, Sexton FM made final parenting orders.

Whether there has been a substantial and significant change

Rice & Asplund (1979) FLC 90-725 (and the cases which follow it), requires that in bringing fresh proceedings, circumstances must have substantially and significantly changed since the current final orders were made.
Pursuant to Sexton FM’s orders of 20 December 2011, the father began spending time with the children each alternate weekend and half of the school holidays. This time was not without difficulties, and on 12 April 2013, both children ran away from school to avoid being collected by the father for the school holiday period. Notwithstanding this, the children returned to their father’s home on 21 April 2013 until, on 23 April 2013, B ran away from his father’s home. B has not spent any time with his father since.
On 7 June 2013, Justice Rees suspended Sexton FM’s orders in relation to when the father was to spend time and communicate with the children and made interim orders that the father spend time and communicate with B as agreed between the parties and that C spend time with the father each Wednesday from after school or 3:15 pm to 7:30 pm and each Saturday from 9:00 am to 8:00 pm. The father’s time with C continued until 18 March 2014, when the father unilaterally kept C for four nights and an ex parte recovery order was made for the return of C to the mother. The father has not spent any time with C since the recovery order was executed.
Each of the parents and the Independent Children’s Lawyer sought orders that were different from the orders made by Sexton FM on 20 December 2011. I find that there have been substantial and significant changes in circumstances relating to the children since those orders have been made and it is appropriate to revisit those orders.

detailed chronology

The father was born in 1964 and is currently 54 years of age.
The mother was born in 1972 and is currently 46 years of age.
In 1985 the father migrated to Australia from Europe.
The parties commenced a relationship in 1991.
In 1995, the parties married.
In 1995 the mother was diagnosed with multiple sclerosis.
The parties’ first child, B, was born in 2001 and is currently 17 years of age.
The parties’ second child, C, was born in 2003 and is currently 15 years of age.
Since 2004 the mother has been asymptomatic of multiple sclerosis although she remains under the care of a neurologist.
In late 2008, a serious incident of family violence took place involving the mother, father and children as described later.
On 28 October 2008, the mother informed the father that she was leaving the marriage.
In December 2008, the mother moved out of the former matrimonial home but returned in 2009 for two months in an attempt to reconcile the relationship.
In April 2009, a second serious incident of family violence occurred which resulted in the father being charged with assault and a provisional AVO being made against him. The mother subsequently left the former matrimonial home and the parties separated on a final basis.
In 2010, the mother commenced a relationship with her current partner, Mr Levine.
On 18 September 2010, an altercation between the parties occurred in the presence of the children which resulted in the father being charged and convicted of malicious damage to property and assault of the mother. The father was sentenced in 2011, to a two year good behaviour bond and an AVO was made against him for the protection of the mother for a two year period.
On 24 March 2011, orders were made restraining both parties from allowing, permitting or causing their partners (including Mr Levine) to be alone with the children or be in the children’s presence while in that party’s care. Orders were also made for the children to spend time with the parties on a week about basis.
On 10 August 2011, the single expert, Dr U, who is a child, adult and family psychiatrist, provided his first Chapter 15 report.
As indicated above, on 20 December 2011, final orders were made by Sexton FM including:
(a)The mother to have sole parental responsibility for the children subject to certain conditions that she inform the father before making a decision about a major long term issue;
(b)The children to live with the mother and spend each alternate weekend from Friday to Monday with the father;
(c)The children be placed on the Airport Watchlist; and
(d)For the father to engage in counselling with a clinical psychologist or psychiatrist for a minimum period of 12 months to address issues concerning the emotional health raised by Dr U and once he had successfully addressed those issues, the children to spend time with the father each alternate weekend from Thursday to Monday.
From December 2011 onwards, the father made a substantial number of allegations against the mother and Mr Levine as to inappropriate parenting (which are discussed with below).
In 2012, the father made complaints against Dr U to the Health Care Complaints Commission to the effect that the report prepared for Sexton FM was not impartial and was biased against the father. Dr U responded to those complaints on 15 November 2012.
On 11 February 2012, the police conducted a welfare check pursuant to a request made by the mother after the children failed to attend their sporting commitments when spending time with the father. The police attended the father’s residence and observed them to be in good spirits and good health. The father advised police the children had not attended sport as it had been raining.
On 5 March 2012, the father wrote the mother a letter requesting they she and Mr Levine cease interfering with his telephone calls to the children. The mother responded on 9 March 2012 advising that she did not agree that she had prevented the children from speaking with the father.
On 9 and 10 March 2012, police conducted a welfare check pursuant to a request made by the mother after she could not contact the father overnight. Police observed the children to be happy and content on 10 March 2012 after not being able to gain access to the father’s residence the previous evening.
On 5 April 2012, the children commenced attending upon psychiatrist Dr F.
On 13 April 2012, the mother advised the father that the children had commenced counselling and that she did not believe this was a major decision requiring her to provide prior notice to the father pursuant to the orders made on 20 December 2011.
On 15 April 2012, during the children’s time with the father over the school holidays, the mother says B told her he’d been sent to “time out” by his father for two days and was made to sit on his bed, stare at a wall and was only allowed to come out for meals and to go to the bathroom. B also told his mother their the father called him a “pig”, “liar” and “backstabber”.
On 16 April 2012, police conducted a welfare check pursuant to a request made by the mother after she had spoken to one of the children and they sounded distressed. The children were observed by police to be in good health and spirits.
On 20 April 2012, B sustained a large bruise on his right thigh which the mother says was as a result of the father pushing B off some climbing equipment resulting in a fall.
On 25 April 2012, the children returned to their mother’s home. The mother says that she became aware of the alleged abuse that the father had perpetrated on B and made a report to police. From 25 April 2012 until late September 2012, the father did not spend any time with the children.
On 1 May 2012, a JIRT investigation was conducted with both children being interviewed by police.
On 2 May 2012, the father was arrested and charged with a breach of the conditions of the AVO made on 31 January 2011. The charges were not established beyond reasonable doubt. The father subsequently sued the NSW Police Force for unlawful arrest, false imprisonment and malicious prosecution, which was settled on a without admissions basis on 22 November 2013 for $80,000.
On 20 June 2012, the Independent Children’s Lawyer was reappointed and the matter was transferred from the Federal Circuit Court to the Family Court of Australia.
On 10 September 2012, interim orders were made by consent for the children to spend supervised time with the father on eight occasions in September and October 2012 and from 26 October 2012 to recommence spending time with the father in accordance with the orders made on 20 December 2011. An order was also made restraining the father from subjecting the children to “time out” as a form of discipline for more than 10 minutes in duration and for more than two occasions every 24 hour period and that this shall occur in the lounge room and neither child shall be required to face the wall or the front door. The mother was also required to use her best endeavours to obtain (and proceeded to do so) an undertaking from Mr Levine that he be restrained from disciplining the children, denigrating the father or using obscene language in the children’s presence.
The father spent supervised time with the children on 22 September 2012 and 29 September 2012.
During the 2012/2013 Christmas school holidays, the father spent two and a half weeks with the children.
On 24 February 2013, the father informed the mother that he had complied with the order made 20 December 2011 for him to engage in counselling. The mother did not agree that he had complied with the orders but, nonetheless, agreed that the father could spend additional time with the children commencing on 11 April 2013.

On 1 March 2013, the father says when he collected B from school he was waiting in the reception area and that he had told the father he didn’t want to go with him and to call the police. B did later leave with the father and C. The father says that later B told him that the mother and Mr Levine had told him to say that he didn’t want to go with the father.
On 15 March 2013, the police conducted a welfare check of the children whilst in the father’s care pursuant to a request made by the mother.
On 12 April 2013, the children were to spend the first half of the school holidays with their father, however, both children ran away from school to avoid being collected by the father.
On 13 April 2013, the father says the mother refused to allow the children to spend the first half of school holidays with him pursuant to the orders. He says he spent time with the children on 21 April 2013 but the mother only agreed after he filed an application for a recovery order. The mother says that it was only with encouragement from her that the children ended up attending the father’s home.
On 23 April 2013, B snuck out of the father’s apartment and walked over three kilometres to Suburb K Police Station. C remained at his father’s home. The father has not seen B since.
On 24 April 2013, the father says police conducted a welfare check on C pursuant to a request by the mother.
On 25 April 2013 and 27 April 2013, the father took C to attend Dr II, without the mother being aware.
On 29 April 2013, the father returned C to the mother.
In May 2013, the father says he telephoned Dr F on a number of occasions to request that she cease treating the children.
On 1 May 2013, the mother’s solicitors informed the father that in the current circumstances the mother sought a suspension of time pending the preparation of an updated report of Dr U. The mother also sought that the parties engage in urgent family therapy. The father informed the mother’s solicitors that he did not agree with the suspension of time and that he was in the process of lodging gross misconduct and negligence complaints against Dr U and Dr F.
On 10 May 2013, a risk of significant harm report was made to FACS by the father’s treating psychologist, Dr II asserting that the children were at risk in the mother’s home.
On 14 May 2013, the mother’s solicitors reiterated that the mother still sought a suspension of the father’s time with the children and that it was her position that the current orders placed the children at risk of serious harm.
As already mentioned, on 7 June 2013, Rees J suspended Sexton FM’s orders in relation to when the father was to spend time and communicate with the children and made interim parenting orders to the effect that:
(a)The father spend time and communicate with B as agreed between the parents;
(b)The father spend time with C each Wednesday from the conclusion of school to 7.30pm and each Saturday from 9am to 8pm;
(c)The parties attend upon Mr Q for family counselling;
(d)The mother be restrained from causing the children to attend further appointments with Dr F;
(e)Both parties be restrained from using any listening devices to record their telephone conversations with the children and using speaker phones when speaking to the children;
(f)The father be restrained from submitting the children to any psychiatric, psychological or medical examination; and
(g)The father be restrained from attending the children’s school except for the purpose of collecting C.
The father says he did not seek contact with B at this time as he was of the view that he had been severely alienated from him by the mother, Mr Levine and Dr F and any order for him to spend time with B may result in him going to the police station again. The father subsequently sought leave to appeal these orders 21 months out of time and the Full Court dismissed that application on 14 April 2015.
On 13 July 2013, the father says that when he and Ms N were dropping C at the mother’s home, a car containing the mother and Mr Levine accelerated towards the back of his car in a “menacing and dangerous manner”. The father says the car was blasting its horn and when it got closer Mr Levine yelled out to the father “you fucking poofter, poofter, fuck you”. The husband says that, fearing the car might ram into him, he drove away but saw in his rear-view mirror Mr Levine exiting the car, walking to the corner of the street and shouting profanities and making threatening gestures. Ms N recollects an almost identical account of the “road rage” event at [7] of her affidavit filed 22 October 2013. The mother denied that any such incident took place or could have in fact taken place in the manner in which the father described. Neither the father nor Mr Levine were asked any questions about this incident and Ms N was not available to be tested. I am unable to make any finding about what happened on this occasion.
On 10 September 2013, the mother’s solicitors wrote a letter to the father seeking confirmation that the court orders could be suspended during school holidays and confirmation that she be able to travel to E Town with the children from 20 September 2013 to 2 October 2013.
On 16 September 2013, the father’s solicitor advised the mother that the father did not agree to the mother’s proposal to change the time and sought agreement that C remain with him while the mother travelled to E Town. The father also advised that he had organised a birthday party for C in 2013.
On 20 September 2013, the mother went to E Town with the children and the father did not spend time with C on his birthday pursuant to the orders. The father says that he had to cancel C’s birthday party.
On 14 October 2013, Rees J dismissed the father’s application that the mother be dealt with in relation to eight counts of contempt. The father alleged, amongst other things, that the mother had prevented C from communicating with him on several occasions and did not facilitate time with him on 21 September 2013. Her Honour found that, whilst the mother had deliberately and intentionally taken the children to E Town, her actions did not amount to flagrant disregard for court orders, as she had informed the father and attempted to negotiate makeup time with him.
On 14 November 2013, the police attended Mr Levine’s residence following an incident between him and the mother where there had been an argument and they had been screaming at each other.
The father makes a number of allegations that during this period of time, B was actively participating in influencing C’s relationship with his father in a negative way. The father gives examples of B preventing the father from speaking to C on the telephone and coercing C into not spending time with the father.
On 14 March 2014, an incident happened involving C and Mr Levine which triggered events that became the focal point of this hearing. C went to his father’s on 15 March 2014 and his father unilaterally retained him. The father says that he kept C in order to protect him, alleging that Mr Levine had physically abused him on 14 March 2014. The father’s feelings of injustice arising from what happened during this weekend have been a powerful driving force for the litigation that has followed. On 18 March 2014, the mother sought and obtained an ex parte recovery order pursuant to s 67Q of the Act on an urgent basis to find and recover C. Since this date, the father has not had any contact with C. The details of these events are discussed in further detail below.
On 28 April 2014, an order was made suspending the father’s time with C pursuant to the orders of 7 June 2013 until 29 May 2014.
On 20 May 2014, Johnston J found that the mother had contravened the orders made by Sexton FM on 20 December 2011. The mother admitted that she had contravened the order for sole parental responsibility without reasonable excuse on 5 April 2012 by arranging for the children to attend upon Dr F without first informing the father. His Honour also found that the mother had contravened Sexton FM’s order, without reasonable excuse, by not facilitating the father’s time with C on 3 May 2013 after B had run away from his father’s home. His Honour found that whilst the mother had a reasonable excuse for not facilitating B’s time with the father, this was not the case for C. The mother was placed on a good behaviour bond for a period of 12 months.
On 29 May 2014, an order was made suspending the father’s time with C pursuant to the orders made 7 June 2013 until 4 September 2014. It was noted that the mother would agree for the father’s brother, Mr MM Dickens, to act as a supervisor to enable the father to spend time with C.
On 4 September 2014, an order was made pending further order, that there be no further time spent or communication between the children and the father.
On 16 September 2014, an order was made allowing the father to communicate with C by telephone on C’s birthday but pending further order, the father spend no time with the children. An order was also made for the children to attend counselling. The father subsequently sought leave to appeal these orders and that application was dismissed on 14 April 2015.
On 27 January 2015, it was noted that Mr Levine denied disciplining or punishing C on 14 March 2014 in contravention of an undertaking he provided to the Court on 8 October 2012. The father withdrew his contravention application against Mr Levine and the father was ordered to pay Mr Levine’s costs in relation to the withdrawal of a contravention application on a party/party basis.
On 17 February 2015, Johnston J dismissed the father’s amended contempt application against Mr Levine which once more alleged that Mr Levine had disciplined and punished C on 14 March 2014 in contravention of an undertaking he gave to the court.
On 20 May 2015, the father’s application for me to be disqualified was dismissed.
On 1 March 2016, an order was made for Dr U to prepare a Chapter 15 Report. The father’s application to discharge the order appointing the Independent Children’s Lawyer was dismissed.
On 4 May 2016, the father’s application to stay the operation and enforcement of orders made on 20 May 2015 and 1 March 2016 pending the hearing of appeals was dismissed.
On 5 September 2016, the father’s application dated 9 May 2016 was dismissed in its entirety. The application sought that Dr U be excluded from having any involvement in the case and a family consultant instead prepare a report; that the order appointing the Independent Children’s Lawyer be discharged and the matter proceed without an Independent Children’s Lawyer; that the order dismissing my disqualification be set aside and there be a stay of proceedings.
On 21 February 2017, the Full Court dismissed all five of the father’s applications to appeal the orders made on 27 January 2015, 17 February 2015, 20 May 2015, 1 March 2016 and 6 April 2016.
On 28 February 2017, Dr U, provided a second, updated report. The father did not attend the interviews for the report.
On 26 July 2017, the father’s application for Dr U to answer questions to clarify his report; for the Independent Children’s Lawyer to pay the fees associated with that work; for Dr U’s report not to be relied on and an application for the Independent Children’s Lawyer to be discharged were all dismissed.
On 5 August 2017, Justice Fagan of the Supreme Court of NSW heard the father’s claim against the NSW Police, the wife’s solicitors and the Independent Children’s Lawyers for “mental harm” caused by the execution of Family Court orders. The proceedings were dismissed on 5 September 2017 and the father was ordered to pay the costs of the wife’s solicitors and the Independent Children’s Lawyer on 1 February 2018.
On 11 September 2017, two weeks before the matter was set for final hearing to commence on 25 September 2017, the father filed an Application in a Case to vacate the hearing dates on the basis that on 5 September 2017 he had filed in the High Court an application for the removal of these proceedings to the High Court. That application was dismissed.
On 25 September 2017, the father’s application to review the Registrar’s decision regarding the reissue of a subpoena made on 29 February 2016 was dismissed.
On 28 May 2018, the father’s application for various reasons for judgment of myself and Johnston J to be rewritten and republished was dismissed.
From 23 to 27 July 2018, the matter was heard for the second time on a final basis. The last written submissions were received on 27 August 2018.

family violence

Sexton FM, in her reasons for judgment of 20 December 2011, described a number of significant incidences of family violence which were witnessed by the children.
At [40] and [41] of Sexton FM’s reasons, her Honour set out the first incident of family violence, and subsequently accepted the mother’s version of that event, as follows:
40.Incident late 2008. On the Mother’s version of what happened, during a night at the end of November/early December 2008, shortly after the parties separated under the one roof, the Mother was sleeping with the boys in their room. The Father woke the three of them at approximately 2.30 a.m. He screamed at the Mother “get up get up” and pulled her by the hair. He demanded she and the children look at a painting he had done on the hallway wall. In front of the children, the Father forced the Mother’s face to within millimetres of the painting. The children were crying. The Mother graphically describes what occurred:
I observed a mass of words and pictures, like graffiti, had been drawn on the hallway wall with blue, black and red permanent marker ink. The words and drawings occupied a rectangular space 3.5m long and 2.5m high. There was writing to the effect ‘you have destroyed the family you are a filthy slut. You have broken my heart and put a knife through my heart, I will never forgive you for breaking up the family.’ Some words were underlined. At the far right-hand side of the wall was a picture of a knife with blood dripping from it. There was a drawing of a broken heart with a knife sticking from it.
41.The Father yelled at the Mother, “Read it out loud you filthy slut”. The Mother grabbed the children and tried to comfort them and shield them from the words and pictures on the wall. The Mother was crying “Please stop and let us go back to bed”. The Father angrily shouted “No” He grabbed [B] by the arm and dragged him away from the Mother. He held [B’s] head and said “Read out loud the message on the wall.” [B], in tears, read it aloud. When finished, the Father demanded he read it out again. The Father forced [B] to read the words aloud at least six times. [B] then asked the Father to let them go back to bed. The Mother took the boys by their hands to walk away, but the Father pushed the Mother into the kitchen and told her to wait. He took the crying boys back to their beds. The Father returned to the kitchen and screamed at the Mother “read the wall”. Crying and trying to return to the children in the bedroom, the Mother’s way was blocked by the Father, and he forced the Mother to the floor of their bedroom and had sex with her by force. He said, “This is my right as we are married.” The Mother heard [C] sobbing. The next day the boys kept asking the Mother if she was all right, appearing frightened of the Father. [B] asked her not to go to work. The Mother believes the Father arranged for his brother [Mr MM], a painter, to re-paint the wall. The Mother did not report the incident for fear of the Father’s reaction and says she did not appreciate at the time, the impact of this incident on the children.
(Original emphasis)
In April 2009, charges were brought against the father in relation to domestic violence. Sexton FM accepted the mother’s version of events and at [43] of her reasons described the incident that lead to the charges as follows:
43.Incident April 2009. On the Mother’s version of events, on the evening of 23 April 2009 the Mother attended a work function. She had given notice on her lease and was intending to return to live at the [Suburb K] apartment because of the financial strain of supporting two households and because she believed it would work better for the children. She did not plan to reconcile with the Father. The Father called her repeatedly while she was at the function that evening. Initially, he questioned her as to where she was, when she was leaving and who she was with. She then stopped taking his calls. On the following morning, 24 April 2009, the Father rang her at her apartment and asked her what time she had arrived home the night before. She told him it was late. The Father said that he was coming to speak to her. The Father arrived at her apartment early that morning with the children, who were dressed in light pyjamas. The Father was visibly angry when he arrived and the Mother became frightened. The parties had a heated argument about the Mother’s whereabouts the night before, the Father claiming the Mother was giving different accounts of her movements. She and the Father were screaming and the children were in the apartment within earshot. The Father approached the Mother who was in the bathroom getting ready for work, and began slapping her around the face and arms until she lost her balance and fell to the floor. She hit her head on the toilet bowl as she fell. The Father was repeatedly demanding to know where she had been. He took off his belt and hit her a number of times with the belt on her neck, face, head and legs. The Mother was begging him to stop. The boys were screaming “Daddy, please stop.” The Mother ran to the bedroom and jumped onto the bed, where the Father hit her again with the belt as she continued to scream. Neighbours called the police. On hearing the police sirens, the Father grabbed the boys and ran downstairs. The police stopped him and returned the boys to the Mother. One of the boys told the Mother “we’ve been at your apartment all night in our pyjamas. It was so cold we asked Dad to turn the car on.” The Mother says a red mark on her forearm was visible very quickly. She was x-rayed on the day of the incident and sustained a hairline fracture to her forearm. She says “I was covered in raised red marks around my head and back and across my legs.” She had a headache, pain in her back and a sprained wrist. She wore an arm brace for 3 months. The Father was charged with assault and a provisional Apprehended Violence Order was made against him. The Father was subsequently sentenced to a two year bond with no conviction recorded and an Apprehended Violence Order was made against him for the protection of the Mother, for 12 months. The Mother says the Father blamed her for his violent reaction and insisted she see his solicitor and that she ask the police to reduce the charge. The Mother wrote the Father a positive reference to use at the hearing. In cross-examination by the Father, the Mother says “you scared me into writing that reference”.
(Original emphasis, footnotes omitted)
Finally, at [47] and [48] of her reasons, Sexton FM set out an incident of family violence which occurred at the aquatic centre at NN Park as follows:
47.Incident September 2010. On 18 September 2010, the children were in the Father’s care. It was the day after [C’s] 6^th birthday and the Mother had told [C] that she would see him at the swimming centre. She went to the Centre without consulting the Father. After the swimming session, the Mother asked the Father if the children could have a hot chocolate with her at the pool. The Father refused. The Mother concedes that the Father told her several times he did not agree to her spending that time with the children, and told her to “go away”. The Mother says she then told the boys she would walk with them to the car. The four of them left the swimming centre together. The Mother describes feeling frustrated by the Father’s attitude. She was carrying a set of keys and her mobile phone. Further down OO Street, the parties had an altercation in front of the children.
48.On the Mother’s version, her phone rang and the Father grabbed her arm to take her mobile phone. He threw her across the road and she hit something before landing on the side of the kerb. The Mother said “you are a fucking unemployed pathetic loser” in the children’s hearing. The Mother reported the Father to police and he was charged. The Father was later convicted of assault and placed on another good behaviour bond. On the Father’s version, the Mother was interfering with his time with the children without his consent, which justified his actions. She would not leave when he repeatedly asked her to leave the swimming centre. She insulted him several times in front of the children, calling him “a fucking pathetic fool” in front of the children. He thought she was “sneakily” recording him with her mobile phone, so grabbed it, threw it onto the ground causing it to break. Though he was charged and convicted of assault he says to [Dr U] “technically it was a minor assault or act of aggression.” He relies on the remarks of the Local Court Magistrate of 31 January 2011 to show that the Magistrate was critical of the Mother. On a reading of her remarks, I accept that the Magistrate was critical of both parties and very concerned for the children. However, after a defended hearing, the Local Court found the Father’s conduct unjustified and convicted him of malicious damage to property and a “minor grade of assault”.
(Original emphasis, footnotes omitted)

The father was sentenced to a two year good behaviour bond and an AVO was made against him for the protection of the mother for a two year period. Sexton FM found that, whilst the mother’s behaviour showed poor judgment, this did not justify in any way the father’s response.
Dr U, in his most recent report dated 28 February 2017, describes C’s account of the incident at NN Park and records that C remembers seeing his father “kick and stomp” on his mother and being pulled along by his father as he saw his mother laying on the ground and that he “thought she might die”. Dr U records that C also referred to other occasions where he recalled when the father had “treated his mother badly” and “bashed her three times”. In final submissions, the father argued that because C had not described these incidences in the first single expert report dated 10 August 2011 (C was seven at the time), the court should not accept C’s memory of the events as valid. This hypothesis was not put to Dr U by the father in cross examination. The findings of family violence perpetrated by the father against the mother made by Sexton FM were not the subject of any challenge during the evidence. I accept that C is reporting to Dr U memories of family violence which he has witnessed.
Mr Levine also gave oral evidence that C, even in very recent times, still brings up the NN Park incident. He says that C remembers his father bashing, stomping and spitting on his mother whilst she was on the ground. The father put to Mr Levine that it was unlikely that C, who had just turned six at the time, would still retain a memory from 2010. Mr Levine was adamant that C did have this memory and that he still referred to it “to this day”.
On 2 May 2012, the father was arrested and charged with a breach of the conditions of the AVO made on 31 January 2011. This was in relation to the incidences of April 2012 involving B sustaining a large bruise to his right thigh and running away from the father’s home. The mother, both the children, a deputy principal and teacher from the children’s school gave evidence against the father. I do not have any transcript of those proceedings or transcript of the judgment. The mother’s evidence before me was that the presiding magistrate, whilst generally accepting the evidence that had been provided, found that it did not reach the requisite standard of beyond reasonable doubt. The charges against the father were dismissed. The father subsequently sued the NSW Police Force for unlawful arrest, false imprisonment and malicious prosecution, which was settled on a without admissions basis on 22 November 2013 for $80,000.

Mr Levine

Mr Levine has been in a relationship with the mother since 2010. The mother gave evidence in Dr U’s most recent report that she and the children reside with Mr Levine 80 per cent of the time. Mr Levine spends the remainder of that time living and caring for his elderly mother who has Parkinson’s disease. His main source of income is a carer’s pension.
The father has an extremely negative view about Mr Levine’s behaviour in respect of the children and the influence he has had upon them. The father seeks a week about arrangement and that Mr Levine is restrained from seeing or communicating with the children.
Mr Levine’s criminal record indicated that in 1983, when he was 21 years of age, he was convicted of stealing petrol and in 1985, he was convicted for resisting arrest. In 2005, he was convicted of attempting to obtain the imported drug ecstasy and was sentenced to 18 months in prison (in circumstances described by Sexton FM in her reasons for judgment at [55]). Since 2005, there have been no entries on his criminal record.
The father also took the court to a COPS entry from an incident in November 2013 which is set out in detail below. This incident does not reflect well on Mr Levine’s behaviour at that time.
The father describes Mr Levine as a “thug” and an “aggressive and abusive convicted drug trafficker”. The father alleges that Mr Levine has used recreational drugs and becomes aggressive when intoxicated. Mr Levine denies these allegations. It is clear from the father’s application and the questions asked of Mr Levine, that the father’s view is that Mr Levine is not a person who is fit to be in the presence of the children.
Annexed to the father’s affidavit, and subsequently played in court, were a number of saved voice messages that the father had received on his phone. On 7 August 2014, the father received three voice messages which stated, “Answer the phone, we need to talk”, “Answer the phone you loser” and “Pick up the phone you fucking loser”. On 23 December 2014, the following message was also left on the father’s phone:
Stop threatening the fucking family. Leave the children alone for Christmas. Leave them alone. Stop threatening them. Stop hurting them you fucking loser. Stop threatening the children. Ok? You are a loser.
Mr Levine, in cross examination, agreed that he left those messages on the father’s phone, but did so in response to times when the father or Ms N had abused the children.
Mr Levine’s views about the father are again illustrated during cross examination in the following exchange:
THE FATHER: [Mr Levine], do you get aggressive when you become intoxicated when you drink?
[MR LEVINE]: No.
THE FATHER: [Mr Levine], on first day of this hearing or second day, did you say – did you say to me outside the door in front of the security guard, “You’re a fucking loser”?
[MR LEVINE]: Yes, I did. I wasn’t drinking either.
THE FATHER: And that makes it okay because you are sober?
[MR LEVINE]: Because it’s correct.
The father claimed that he was intimidated by what Mr Levine said on that morning. He intimated that he may take action to have Mr Levine charged on the assertion that Mr Levine had committed a criminal offence by intimidating him as a witness in this hearing. The father’s general demeanour at this time and his subsequent vigorous cross examination of Mr Levine belied his assertion that he felt intimidated by being called a term that Mr Levine had used on a number of previous occasions. Initially, Mr Levine was unapologetic about what he had said but ultimately, the following exchange occurred:
HIS HONOUR: Have you reflected on that behaviour at all?
[MR LEVINE]: Yes, I have.
HIS HONOUR: And what do you say having reflected on it?
[MR LEVINE]: It wasn’t – it wasn’t the right thing to do, your Honour. It wasn’t the right thing to do.
It is clear that Mr Levine resents the father as a result of their interactions, the father’s attitude to him and what he believes the mother and children have been put through during the course of this protracted litigation.
Notwithstanding the above, Dr U opined that the children have a very positive relationship with Mr Levine and that there is no indication that they’re fearful of him. Dr U found that there were no ongoing significant problems and that Mr Levine did not pose an unacceptable risk to the children.

Cops entry from march and November 2013

There are two COPS entries from 2013, one which reflects poorly upon the mother and the other which raises concerns about Mr Levine’s behaviour at that time.
Exhibit 85 is the COPS entry in relation to an incident on 15 March 2013. The mother had been unable to talk to the children whilst they were with the father. She had rung the police and asked them to carry out a welfare check. The police, prior to attending, called the mother to gather further information. They recorded that during their conversation with the mother they asked “What concerns do you have about your children’s welfare?” and that the mother replied, “He won’t let me speak to my children over the phone. I have a right to speak to them”. The police said, “But what concerns for their safety do you have?” The police report that the mother refused to answer the question and continued to tell the police about past matters. The police said that they then asked her “Has he ever hurt or assaulted the children?” The police record that the mother’s answer to that question was “no”. The police said they asked her “Is he a good father?” and record the mother’s response as saying “I think that it is highly inappropriate for you to ask that”. The police did not form a good impression of the mother’s behaviour on this occasion.
The father attempted to ask the mother in cross examination about whether or not that conversation with the police was accurate. The mother denied telling the police that it was her view at that time that the children had never been assaulted by him saying “I don’t remember saying no”. I am mindful of the findings Sexton FM made (which are detailed above) relating to the father perpetrating family violence in the presence of the children. The mother does accept, however, that she behaved inappropriately on this occasion.
This COPS entry ends with a note that similar behaviour has been observed by the father in the past, the most recent being February 2013 and the police fear that both parties will now be using this tactic to either make reports or to create further conflict with respect to the situation. The COPS entry suggests this matter be followed up by the Suburb K Domestic Violence Officer, and somewhat prophetically concludes, “As it is clear the matter is not going to go away”.
Exhibit 82 is a COPS entry relating to an incident on 14 November 2013. The informant is a neighbour who heard the mother and Mr Levine screaming at each other inside the house whilst walking past. The mother ran out of the house crying and the neighbour asked if she was ok. The neighbour reported that Mr Levine then came out of the house in his underwear and threatened to kill the neighbour and his children. If this threat was in fact made, the neighbour apparently did not take Mr Levine’s threat seriously because he informed police that “he did not care” about Mr Levine’s threats and just wanted to ensure the welfare of the mother. The police attended the premises and reported that the mother told them that Mr Levine just “carries on when he’s drunk”. They observed that the mother appeared fine and did not display any signs that she was in distress. The police did not see any physical injuries. They reassured the mother on a number of occasions that they could be of assistance to her if she needed help which she refused.
Although the father, in cross examination, mentioned this in a preamble to a question, he did not ask Mr Levine if he had threatened to kill a neighbour and his children. Whilst this is a very serious allegation, there is no indication that the police or the neighbour took any further action in regards to the alleged threat.
The father took the court to the part of the COPS report which read, “Fears held by the mother: believes [Mr Levine] is a bully, who becomes aggressive when intoxicated”. This appears to be what the police officers have interpreted from their conversation with the mother, and not a quote by her. The father asked Mr Levine in cross examination whether or not he was aggressive when he was drunk. Mr Levine disagreed with that proposition.

14 march 2014 to 18 march 2014

The alleged assault on C (who was ten at the time) by Mr Levine on 14 March 2014 and its aftermath has become a focal point for the father of the grievances he has against the court and many of the professionals who are in some way connected to these proceedings. During the final hearing, these events occupied the vast majority of the time that the father spent in cross examination and submissions. For this reason, I discuss the evidence about this event in some detail.
The father continues to allege that Mr Levine assaulted C on 14 March 2014, by taking C by the ear, kicking him, punching him, throwing a ball at his head and hitting him with a sleeping bag on three occasions leaving a bruise on his lower back.
It is useful to record relevant orders and undertakings that were in existence at this time. On 10 September 2012, the mother agreed to an order that she would use her best endeavours to obtain an undertaking from Mr Levine in the terms attached to the consent orders. On 8 October 2012, Mr Levine signed an undertaking in the following terms:
I [Mr Levine] undertake to the court, without admission, as follows:
1)     Not to denigrate the respondent father in the presence or hearing of the children;
2)     Not to use obscene or unseemly language to or in the presence of the children;
3)     Not to discipline the children and in particular not to administer any punishment to the children; and
4)     Not to be present at or coming into any contact with the father during changeover between the father and the children.
An order was also made that neither party record conversations between the father and the children and the mother and the children.

14 March 2014

Exhibit 69 is the mother’s statement to police in relation to the alleged assault. The mother gives the following version of events. She and Mr Levine had returned from the pub after a late lunch with friends at about 7 to 7:30 pm and she had left the children at home with Mr Levine’s mother. When she arrived home she went straight to the bathroom and, about two minutes later, walked out to see Mr Levine’s mother and C watching television in the kitchen with Mr Levine and B standing in close proximity in a heated discussion. She heard Mr Levine say something about the state of the children’s bedroom and about how everybody was now going to bed. She remembers her mother commenting, “Well you can’t send me to bed!” According to the mother, they all moved towards the children’s bedroom as the children were accusing one another of being responsible for the untidiness of their bedroom. The mother said Mr Levine was shouting at the children to pick their stuff up in a frustrated but not aggressive way. The children continued to bicker. The mother then said that Mr Levine picked up some clothes and held them up and said “Put these away” and C responded “Well you’re not the boss of me. This is why I want to spend more time with my Dad!” Mr Levine said, “Why, what’s so good about your dad’s?” and C said “It’s easier there”. The mother responded saying, “What’s easier? Well of course it is easier, you don’t sleep there so there is no bed to make, you don’t have to clean things up, you don’t have clothes there so they don’t need to be put away, but here you need to do things and one of those things is to keep your room tidy”.
There was some further argument about the cleanliness of the room and the mother was saying things like “Mate we say the same thing every day. You make your bed, you pick your crap off the floor and you pick up everything you have been using and put it either under the bed or in the dirty washing bag”. Mr Levine then told the children “Everyone is going to bed!” C became upset, although the mother says he wasn’t crying but was saying things like, “This is why I want to live with my dad and why I want more time with daddy”. The police statement records that it was common for Mr Levine to respond to C when he said things like this with, “Well mate, I’ll drive ya, but the reality is, you can’t stay there”. The mother said that that was a reference by Mr Levine to the existence of the Family Court orders. The mother commented in cross examination that although she found Mr Levine’s statement unhelpful she understood it in the context of what had happened.
The mother said that after this unhappy episode, she sat with C as he fell asleep and chatted with him about his father. She admitted that C had wanted to spend more time with his father and said C asked that his father attend Sunday soccer games and that he be able to go out for dinner and breakfast more regularly with him. She said that this was something C was regularly raising at that time. The mother also opined that at that time C was confused because he reported that his father was often saying negative things about Mr Levine. On that Friday night, the mother indicated that she resolved that she would attempt to have a conversation with the father on the following day at changeover even though the two of them at that time hadn’t spoken to one another for a year or two.
The mother says at no time during this evening did she see Mr Levine kick, punch, slap or touch C. The mother makes no mention in her statement about Mr Levine taking C by the ear and by the shoulder or arm. She says that at no time did she see Mr Levine pick up one of the sleeping bags or anything else and hit C with it. She says it was her belief that that did not happen, even accidentally. The mother says at no time did C scream out in pain or distress although she concedes that he was clearly frustrated and upset. The mother also says that at no stage of the evening did C make any complaint of a sore back. The mother comments that B was also there. I have no evidence that B reported to anybody that he witnessed an assault by Mr Levine on C on this day.
The father attempted to test the mother in cross examination as to whether her evidence of the events of 14 March 2014, and the subsequent events, were motivated by attempts to either protect Mr Levine from charges of assault, keep the favourable parenting orders that she had, or alternatively, protect the financial security and accommodation security that she depended on from Mr Levine. The mother’s response to all such questions was that she was not motivated by any of these matters and that her only concern was for C’s welfare.
The father played in court part of the police record of interview with C about the events of 14 March 2014 (from Question 185 to the end; about 48 minutes). The interview had been conducted approximately three months after the incident took place. C told police that on 14 March 2014 he was out with his parents and B, firstly at a family friend’s home and then at the pub in the children’s section. He says that his mother drove them home, it was raining, they got out of the car and then without the mother seeing, Mr Levine kicked him in the bottom prior to them entering the house. C told police that this did not hurt but then says that Mr Levine also hit him somewhere on the front of his body which was painful. Initially, C pointed to a place close to his lower ribs on his right hand side, but later in the interview, it became a more generalised area in his lower abdomen. Neither of these alleged assaults left a mark on C. There is no suggestion in the version given by the mother and Mr Levine that there was any such event involving C outside the house on 14 March 2014.
C then asserted that there was an altercation in his bedroom where Mr Levine attempted to hit him around the head, didn’t succeed in connecting, but then caught him by the ear and pulled him. He also told police that Mr Levine had hit him on the head with a soccer ball and that Mr Levine had thrown a sleeping bag three times which hit C on the middle of his back. C said that his mother had tried to protect him and that his mother and Mr Levine had got “physical”.
Notwithstanding these answers, earlier in the interview (which the father did not play in court) C was asked, “Have you ever been assaulted by [Mr Levine] or hit by [Mr Levine] before?” C responded “No”. In addition, C said in the interview that the father had told him that Mr Levine had hit him, side kicked him in the head and hit him with a beer bottle and said that “Well, all that was just untrue”.
The father, during his cross examination of Mr Levine, demonstrated his interpretation of how C recounted being hit by the sleeping bag. He demonstrated three violent blows to C’s back. C’s demonstration was far less dramatic. C also told police that Mr Levine was not holding onto the sleeping bag when it made contact with his back but that it had been thrown.
The evidence Mr Levine gave about the events of 14 March 2014 is generally consistent with the mother’s. Mr Levine agreed that an unpleasant event occurred on 14 March 2014. He conceded that at some point during the argument he had taken C’s ear and asked “Are these painted on?” and that he had taken C’s arm and pulled him. Mr Levine also admitted that he used unseemly language when he asked C to clean up his bedroom saying, “It can’t be that fucking hard”. Mr Levine denied that he kicked C, hit him, threw a ball at his head or hit him with a sleeping bag repeatedly.

The father asserts that Mr Levine’s concession that he pulled C’s ear is a concession that he assaulted C because it involved “apprehended fear” experienced by C. I do not consider that what Mr Levine has accepted he did constitutes a sanctionable assault. The father also alleges that this, and Mr Levine’s use of unseemly language, were breaches of his undertaking not to discipline the children or swear in their presence. On 17 February 2015, Johnston J dismissed the father’s contravention application that alleged that on 14 March 2014, Mr Levine breached the undertaking he gave in October 2012. His Honour found that the father had failed to establish a prima facie case for the breach of the undertaking.
Counsel for the Independent Children’s Lawyer submitted that, at its highest, the evidence in relation to the events of 14 March 2014 is:
(a)C got kicked in the bottom but he said that didn’t hurt and it left no mark or injury;
(b)C said he got hit in the front but there is no mark nor any injury or discomfort apart from some apparent initial pain;
(c)C got hit in the head with a soccer ball but that didn’t leave any injury;
(d)C was tugged by the ear but no injury was caused and there is no report of even any pain;
(e)C was taken by the shoulder or arm by Mr Levine but again there was no injury or pain; and
(f)C was hit three times by Mr Levine throwing a sleeping bag at his back which led to some soreness of the back and a small bruise and abrasion.
Whilst C appeared to give his version in a free and candid way, there are a number of agreed inconsistencies in what he said including that he had mistaken which GP he had attended. I have to balance what C said in his interview with the consistent versions given by the mother and Mr Levine, tested in the courtroom by the father.
In relation to the potentially most serious allegation that Mr Levine hit C in the area of his lower right rib outside the property on 14 March 2014, it is relevant to note that the police observed no sign of injury to that part of his body. Mr Levine denied that he punched C in the area of his lower right rib.
On balance, I find what happened on 14 March 2014 is substantially as described by the mother and Mr Levine. Even had I fully accepted the version given by C, which I do not, over four years has passed since the incident and I have no evidence that this incident has had a negative, ongoing impact on the children or their positive relationship with Mr Levine.

15 March 2014

On 15 March 2014, pursuant to orders made by Rees J on 7 June 2013 that the father spend time with C each Saturday from 9 am to 8 pm, the mother brought C to the father’s home. The mother had asked C whether or not he wished that she discuss with the father what was spoken about the night before and C confirmed that he did. The father came down from his unit and into the foyer. The father alleges that the mother “made a scene at changeover” by locking her hands around C’s body and preventing him from going with the father. The mother denied this and said that she was likely just cuddling or draping her arms around C.
It is an undisputed fact that the father had been holding his phone in his right hand at about hip height and was using it to film the changeover of C between the mother and father. The father has tendered the video into evidence and asked that I view the video of the changeover, which I have. Whilst I accept that the father has generally described the physical aspects of what is displayed on the video correctly, I accept that the mother’s interpretation of what happened is substantially accurate. The mother had her arm around C’s shoulder as she requested the father to speak with her. The mother did not seek to prevent C from going inside when the father said to the mother, “Put it in writing”. When the father beckoned C to come, he did so immediately, without any resistance from the mother. She did not lock her hands around C’s body preventing him from going to the father. I accept that the mother attempted to engage the father in conversation and the father resisted that. The father alleges that the mother, in this instance, used C as a “messenger”. There is nothing in the video that would indicate that to be so.
The father said that after they went inside, C described being assaulted by Mr Levine and complained of a sore back. The father proceeded to take a number of photographs of C’s back and then took C to the doctors and the police station.
The mother at around 10:15 am noticed that she had two missed calls from C and a message from the father. She said she immediately called C, who answered and said, “Dad understands why you wanted to talk to him and I want to stay tonight at Dad’s”. The mother said she replied that she would have to think about that and she would give C a call back in the afternoon. She explained the reason she responded in that way was she wanted to talk to the father about it. She says the text message from the father said, amongst other things, that “[C] reported that [Mr Levine] assaulted him again last night and that you said it’s not safe for him to be at your place and he should stay at my place”. The mother ignored that message, explaining that at that point in time she ignored most messages that the father sent. At 12:45 pm she received another text message from the father saying that he had sent her an email with an offer and proposal regarding the children and asked her to respond by 5 pm. The email had been sent at 10:43 am and reiterated in a more lengthy way the previous text messages. At 12:39 pm the mother says she received a second email from the father alleging it was unsafe for C to stay with her and that he proposed that the children live with him until she found alternate residence. The mother’s reaction to receiving these emails was to forward them to her solicitor.
During this time, the father went to some trouble to photograph C’s back. The father conceded that the photographs (at page 236, 237 and 247 of the father’s Annexures) whilst they seem to depict a large area of “bruising”, were not of bruising but rather were taken by him to emphasise the minor abrasion that was on C’s skin. Consequently, what appears to be a large tan area is not to be taken as an area of any bruise. The mother suspects the photographs may have been the subject of digital enhancement. It is more likely though that the photographs are of different exposures and taken in different light.
C commented in his record of interview that his father said that he wanted to take the photographs as the police “would do a lousy job so he wanted to show them his work because he would do the best of perfection and so ….. He took a few”. When questioned as to why, C said that his father had told him, “Don’t trust police… they are good to run to but they are never good to trust” and “police don’t care and some police are, used to be criminals”. C continued to describe the father’s attitude to police saying “A lot of them just, they don’t care and they just, they, they just want, they just want your money is what he said. They’re like, he said they’re like the courts. They’re bastards.” The police asked C why, if his father thought they were bastards, did he take C to the police to make a report and he responded that his father had said “We’re gonna make this bastard pay”. It became clear from further questioning that the “bastard” was Mr Levine.
On 15 March 2014, the father took C to Suburb T police station to report the incident that occurred the night before. The COPS report (Exhibit 81) states:
Police inspected the body of [C] and found only a very light and very small bruise and slight mark to the area just above his short line at his spine. There were no other marks on [C]. In fact, Police found it odd that an active child of 10 years had such a complete absence of any bruising or other marks on him that might be incurred as a result of every day play.
The police initially were of the view that having spoken to everyone concerned, the allegations were fabricated and not substantiated. The COPS report notes that “Various aspects of the version presented by the child lead Police to have concerns for the veracity of his story such as terminology used, sequence of events, absence of supporting evidence. [C’s] story was somewhat fantastical.” It was only after the father’s agitation that the police agreed to conduct a formal interview with C. This meant that the interview was conducted on 12 June 2014, three months after the events of 14 March 2014 took place, and resulted in C’s memory of what happened that evening being on occasions demonstratively not reliable.

18 March 2014

On 18 March 2014, Johnston J made an urgent recovery order on an ex parte basis for C to be returned to the mother. His Honour found that C had been absent from school and that the father had retained C in breach of the existing orders.
Exhibit 86 is a COPS entry relating to the execution of the recovery order by police on 18 March 2014. From the father’s point of view, it is highly controversial. It gives a devastating description of the father’s behaviour prior to C being returned by the police under the recovery order. It is in the following terms:
While police were attempting to execute the order [the father] was obviously trying the upset his son and made the process very distressing for him. [The father] stated, “[C] I am sorry but the court and the police are not here to help you they are trying to hurt you they don’t care about you don’t trust them”. This and other similar dramatic statements were said over and over and you could see that [C] was becoming more distressed. He was crying and shaking his head. Inspector [EE] said “You are upsetting him we are not going to stand here and have you speak to him like that. As a parent you need to reassure him so that he is not scared and upset as much as possible under the circumstances”.
[The father] was being very dramatic and speaking in a tone and manner that was designed to scare [C]. [The father] sat [C] down and became very serious making him look at him in the eyes and said, “Remember what we talked about, stay strong, don’t let them change your mind. They are not there 24 hours a day”. This statement was repeated over and over at least five times until police again had to interrupt and say “Ok we are going now”. It sounded like he was threatening [C] not to go back on something he had said or done. As police were walking out the door [the father] was saying “Your mother doing this shows you she doesn’t love you she doesn’t care about you”. To police he said, “Are your children safe at home”. After police left [the father] rang [Suburb K] Police station and asked for the names of the police that had attended had [sic] if they had children. Police are concerned that [C] is being exposed to psychological harm.
The father disputes parts of the COPS record of his behaviour at the time of the execution of the recovery order including that they had not recorded the presence of Ms N. However, the father has agreed, that he did tell C not to trust the police, that they weren’t there to help him and that the police don’t care. He also agreed that he said to C on this night that his mother and Mr Levine could not watch him 24 hours a day. The father agreed that this was a statement designed to make it clear to C that he could leave his mother’s house if he needed to and either come to his father’s house or go to some other place. C was ten years old at the time.
Ms N also gave evidence in her affidavit filed 12 May 2014 that is consistent with the father’s version of events. She records the father telling C “I’m sorry but the police are not here to help you, they don’t care about you. Don’t trust the police but you’ll have to go with them.” She asserts that the female police officer was unprofessional, aggravated the situation and “showed no empathy”. I place little weight on this evidence as Ms N was the father’s partner at the time and she is now not available for cross examination.
The father claims that the COPS entries relating to the March 2014 events (Exhibit 81 and 86) have been amended by police and that there are several, significantly different versions of the same COPS entries. In final submissions, the father gave an example of a change that he alleges the police made to Exhibit 81, namely, that the COPS entry he received on 15 May 2015, did not contain the summary that now says “Incident rejected. Fabrication”. At pages 415 to 427 of the Annexures to his affidavit of 17 July 2017, the father details a number of alleged edits made to the COPS entries by police which he claims “were likely sourced, and read as they were scripted from [the mother’s] family law solicitor, [Ms JJ] and/or by the Independent Children’s Lawyer”. The father also claims, amongst other things, that the police deliberately omitted details of the events to cover up misconduct, colluded with the mother’s solicitor and the Independent Children’s Lawyer and edited COPS entries without any basis and beyond the scope provided by the Government Information (Public Access) Act 2009 (NSW).
Having identified these amendments by police to the COPS entries, the father then submits that anything the police might record as happening during the March 2014 events is unreliable, describing the police as his “natural enemy”. I do not accept that the police record should be given no weight.
The father has accepted the accuracy of some of the COPS record of 18 March 2014 and I, on balance, accept that some weight needs to be placed upon the whole of the COPS record which sets out what the police say the father said to C prior to them being able to remove him from the home. The father also complains about the way in which the police executed the recovery order but on the evidence that I have, they did so with impeccable professionalism.
The father, in cross examination, pressed the mother on a number of occasions to concede that her decision to move the court for an ex parte recovery order was a poor reflection on her parenting capacity. In that context, the father said that he did not believe that he bore any responsibility for what happened on 18 March 2014. The father claimed that it was the presence of police, not his actions, that caused C to suffer on that night, and it was the fault of the court and the mother for the issuing of an ex parte recovery order. This is in the circumstance, where the father ignored the police requests on at least two occasions to return C prior to the recovery order being executed. The mother, when pressed, said that what she did was on the legal advice that she had at the time and that she would do the same if she received the same legal advice today.
I have got no doubt that C was significantly affected by the events of 18 March 2014. The fact that police arrived at his father’s home to pick him up at 8 pm is, in itself, a totally unfortunate experience for a ten year old boy to have. However, I find that the father’s actions prior to and during the execution of the recovery order made the situation significantly worse for C.
I accept the mother’s submission that the father is stuck in March 2014 and that he has not been able to move forward and get past what he perceives is injustice done to him at that time.

the allegations which were not specifically referred to during the hearing

The father, in his affidavit of 17 July 2017, makes a substantial number of historical allegations against the mother and Mr Levine as to inappropriate parenting behaviour. Apart from a few events (which have been discussed above), the father in the final hearing did not ask the mother or Mr Levine any questions about the balance of the allegations made nor did he make any submissions about why they were relevant to the determination of the orders I now have to make. The father simply submitted that if they were not responded to in the mother’s evidence his version should be accepted. I have read all the material filed by the father.
Contained in the large volume of material filed by the father are allegations that include:
(a)The mother has actively campaigned to alienate the children from the father and had taken the children to Dr F for the purpose of “brainwashing”;
(b)The mother has been diagnosed with bipolar disorder;
(c)Both the mother and Mr Levine use recreational drugs;
(d)Mr Levine has physically and verbally abused the children on numerous occasions;
(e)The mother and Mr Levine have intimidated and verbally abused the father; and
(f)The mother and Mr Levine have left threatening and abusive voice messages on the father’s and Ms N’s phone.
The mother, at [13] of her trial affidavit states, “I would like to rely on the court file and its long history, the affidavit of [Mr Levine], and this document for the hearing in September.” In saying this, the mother has asked the court to take into account her sworn responses to earlier allegations made by the father. The mother has filed evidence with the court (See her affidavit filed 3 June 2013) where she has denied actively campaigning to alienate the children, using illicit drugs and ever being diagnosed with bipolar disorder. She consistently denies ever witnessing Mr Levine physically or verbally abusing the children in any way.
Not all of the material the father has filed has been directly responded to by the mother. The mother was unrepresented at the final hearing and, in comparison to the material filed by the father, her affidavit and the affidavit filed by Mr Levine are short. Neither affidavit engages with the specific allegations made by the father including, in particular, the allegations concerning Mr Levine’s behaviour in the mother’s household prior to 14 March 2014. Of course, what Mr Levine has said to have done on 14 March 2014, did come under intense scrutiny during the hearing as is discussed above.
In regards to whether there is any truth in the allegations about Mr Levine’s behaviour, particularly towards C prior to March 2014, its relevance and weight needs to be seen through the prism of the most recent observations of Dr U of the very positive relationship of both children and Mr Levine.
Much of what the father asserts happened in the mother’s household prior to March 2014 is the father’s version of what he said C reported to him. I place little weight upon the father’s evidence about what C has said, in circumstances where the father has not spoken to C in over four years (see s 69ZT(2) and s 69ZV(3) of the Act). As indicated elsewhere, I form the view that C’s recollection of the events of 14 March 2014 is unreliable and is likely to be affected by the types of conversation between the father and C observed by police officers on 18 March 2014.
I do not make any findings about matters where the evidence is contested or there has been no proper testing of that evidence during the hearing. Many of these allegations are at least four years old and are contested on the face of the written material. The majority of these allegations were not the focus of any questions during the five day hearing. The father did not draw my attention to any particular part of it as being significantly relevant in determining the parenting orders that should be made. It is not necessary for the purposes of deciding what parenting orders should be made to make any specific findings about historical allegations. Suffice it to say, I accept that there was a dysfunctional relationship between the parents in this period of time.
I’ve taken this material into account when reaching the conclusions that I have about what parenting orders are appropriate in this case. In any event, I find that even on the father’s version, the weight to be placed on those events to which the mother has not specifically responded is minimal in comparison to other considerations discussed in the reasons in determining what parenting orders should be made.

Although B has had some learning difficulties and mild social problems, the mother painted a positive picture of B’s year 11 performance. She proudly said it wasn’t that he was just performing well compared to how B himself normally performs but that he was actually now achieving competitive results with his classmates in subjects like sports science. B, much to his mother’s pleasure, has started to think about what his future career might be. B has also done a number of courses and obtained a number of certificates that might be of assistance to him in obtaining future employment.
The mother also reports that C is doing well in his academic subjects and excels at sports. The mother made it plain that a good part of the family’s weekend endeavours were centred on attending to C’s sporting commitments. The mother submitted that the main purpose for seeking to remove the children’s name off the Airport Watchlist was to enable C to have the opportunity to attend international sporting events or competitions.
The father put to the mother that she had “broken C’s spirit”. There is no evidence that would support that assertion. The evidence of Dr U is very much in the opposite direction and I accept the mother’s overall evidence about C’s current progress emotionally and scholastically.

If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))

Not applicable.

Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))

There is no existing family violence order. The issue of family violence has been discussed above.

Likelihood of order leading to further proceedings (s 60CC(3)(l))

Given the long history of the litigation in this case (including seven Full Court appeals and three unsuccessful applications to the High Court), this is an important consideration.
Dr U opined, and I agree, that if contact were re-established between the children and the father it would likely “open up further opportunities for litigation and allegations against the mother” which would “create more problems for the children”. Dr U opined that an order which did not require the children to spend time with the father would protect the children from “further and ongoing litigation which the father seems to be unable to contain.” I agree with that opinion.

Any other relevant fact or circumstance (s 60CC(3)(m))

Not applicable.

parental responsibility

As the father has engaged in family violence, the presumption of equal shared parental responsibility does not apply in this case. In fact, neither party is applying for an order for equal shared parental responsibility.
Both parties seek an order for sole parental responsibility.
I have found the parties currently have no ability to effectively communicate about the children.
The mother says she does not want to provide the father with any information or seek his permission about major long term issues because she says it results in further litigation and conflict between the parties.
The father also seeks sole parental responsibility in the circumstances where he says that Dr F was used by the mother to alienate him from the children, being a decision the mother made pursuant to an order in her favour for sole parental responsibility.
It is in the children’s best interests to make an order in the mother’s favour for sole parental responsibility without attaching any conditions to that order.

section 65daa

Given that I shall not make an order for equal shared parental responsibility, s 65DAA is not enlivened and I find it is not in the children’s best interests to otherwise consider whether the children should spend equal time, or substantial and significant time, with their father.

Conclusion as to best interests

Dr U opined that if orders were made in terms as sought by the father it would be a terrible thing for the children. I agree. The father’s personality, behaviours and attitudes have impacted upon his functioning to such a degree, that he struggles to prioritise what is important to his children. Whilst the father cares for the children and the children care for him, unfortunately, this means that any time the father would spend with the children would make it impossible for them to develop in any sort of healthy way, particularly if, they continue to be embroiled in ongoing litigation and conflict.
The father’s legal strategy has led to the lamentable circumstances in which the father and the children find themselves. This is the second final parenting hearing the parties have had. For a number of reasons, and for which the father is significantly responsible, the hearing has taken a lot longer than it should have to complete. Despite his qualifications, the father has been on Centrelink benefits for the last six years because he has been working full time on various legal proceedings connected with this case and satellite proceedings involving the police, the mother’s lawyer and the Independent Children's Lawyer in other jurisdictions. Currently he sleeps in his motor vehicle two thirds of his nights and otherwise sleeps in the homes of friends.
The father takes little, if any, responsibility for anything that has happened in this tragic history of circumstances which has persisted for at least the last four years. He complains about the behaviour of many of the professionals who have been associated with this case including at least three judges, a senior registrar, various police officers, Dr U, the mother’s former lawyer, the Independent Children's Lawyer, and most recently at the final hearing, the father claimed that the counsel for the Independent Children’s Lawyer was “dishonest and not a fit and proper person to practice law”. He is steadfast in his view that his grievance against each of them is relevant and justifiable. He has been unsuccessful in the High Court on three occasions and in the Full Court on seven occasions. He has unsuccessfully attempted to claim damages for intentional tortious injury from the mother’s former lawyer and the Independent Children's Lawyer in the Supreme Court.
Whatever label is put on the father’s mental status, he behaves in a way which concentrates on perceived and usually false grievances which are minor in the overall scheme of things, allowing him to ignore the bigger picture or to dismiss it out of hand.
The father sees no value in the children’s relationship with Mr Levine. The father seeks an order that Mr Levine not live under the same roof as the children, notwithstanding, that he has been the partner of the mother of the children now for eight years. On the father’s proposal, every second week during school term and during half the school holidays, if Mr Levine didn’t voluntarily agree to move out of the home for the time the children were with their mother, the mother and the children would have to move out of that home. The feasibility of that proposal was not explored by the father with either the mother or Mr Levine in cross examination. The father is blind to the impractical nature of that proposal. He contented himself by saying that it was the system that was the problem and he had not contributed to the problem in any way. Whilst this is an intractable parenting dispute, the father has got almost no insight into the part that he has played in the breakdown of his relationship with the children.
This is a case in which the children have expressed clear views. Those views are of almost overwhelming weight and overshadow any events or historical grievances upon which the father now refers.
I find that it is in the children’s best interests not to make any order requiring the children to spend time with or to communicate with their father. Making such an order would not produce the benefit of them having a meaningful relationship with their father, in fact, such an order is likely to diminish the chances of a relationship redeveloping in the longer term. They may spend time with the father in accordance with their wishes. I accept that this means that the children shall not spend time with their father in the foreseeable future.

proposed orders

The mother seeks an order allowing her the option of relocating within Australia. She told Dr U she sought such an order in case she was offered a promotion in another state. The mother did not suggest in the hearing that she intended to move interstate but, given the proposed parenting orders, there is no order that would prevent her from doing so.
The mother also sought to be able to take the children outside of Australia. As mentioned above, the mother indicated that her main motivation in obtaining an order that would allow the children to travel outside Australia related to the possibility that C could be involved in sports teams that play internationally. I find it is in the children’s interests to allow this.
In a notation in Exhibit 89, the Independent Children’s Lawyer proposed that he would telephone the children upon the making of these orders to explain the orders and attend to any queries the children may have in relation to the orders. I will make that notation that he do so.
The Independent Children’s Lawyer further suggested that it should be noted that the father was at liberty to send gifts to the children. The mother did not indicate whether or not she accepted that notation and on balance, given the history and the need to protect the mother and children from future litigation, I don’t think that notation should be made.
The mother made an application to restrain the father from being able to come within 250 metres of the children’s home or school, her home or place of employment and the mother’s current partner’s place of residence. The mother did not refer to this application in final submissions. There does not seem to be any recent history which indicates that this order is currently necessary and accordingly I shall not make that order. If the mother in the future believes an order of this nature is necessary she has the ability to make a fresh application.

application by the independent children’s lawyer for costs

The Independent Children’s Lawyer made an application that the parties pay his costs.
The starting point is that it is assumed that each party will pay their own costs, however, the Independent Children’s Lawyer is to be treated as being in a position analogist to an impecunious party.
In final submissions, counsel for the Independent Children’s Lawyer said that she was obliged to make an application for costs, but was not making any other submission.
The father is on Centrelink benefits and I am not aware that he has any assets apart from his car. Accordingly, I will not make any order for costs against the father.
Given that it is my view that the father has been mainly responsible for the extent of the litigation, I find it is not just to make an order that the mother pay costs.
Accordingly, I dismiss the Independent Children Lawyer’s application.

order sought by the mother to prohibit the father from filing further applications or appeals without leave

The mother made an application for an order pursuant to s 102QB(2)(b) of the Act to prohibit the father from instituting proceedings under the Family Law Act in any court having jurisdiction under the Act. That application was supported by the Independent Children’s Lawyer.
At the end of the hearing, I made the following directions (Exhibit 91):
a.By 4pm, Friday 10 August 2018, the Independent Children’s Lawyer provide to the parties and my associate written submissions in electronic form in respect to the mother’s application for a vexatious proceedings order.
b.By 4pm, Friday 17 August 2018, the mother if she chooses, provide to the father, the Independent Children’s Lawyer and my associate written submissions in electronic form in respect to the mother’s application for a vexatious proceedings order.
c.By 4pm, Friday 31 August 2018, the father provide to the mother, the Independent Children’s Lawyer and my associate written submissions in electronic form in respect to the mother’s application for a vexatious proceedings order.
d.All written submissions are to be limited to a total of 20 pages in a font no less than 13 and otherwise in compliance with Rule 24.01(1) of the Family Law Rules and the document is not to contain any additional evidence.
The mother, who was unrepresented, did not choose to file any written submissions. The Independent Children’s Lawyer provided written submissions in support of the application on 9 August 2018 (which I mark Exhibit 92) and the father provided his written submissions on 27 August 2018 (which were exactly 20 pages in length). I mark the father’s document entitled “Submissions of the respondent father regarding Exhibit 91” as Exhibit 93. Exhibit 93 takes the father’s allegations against professionals to a new level. At [10] he charges the Independent Children’s Lawyer and counsel for the Independent Children’s Lawyer as being persons who “have made life long careers out of trivialising, dismissing or covering up child abuse and, in effect, stealing children from their biological parents based on lies and fabricated evidence”. In Exhibit 93, the father compares Dr U and Dr F with reports of a Norwegian psychiatrist who had been gaoled for downloading and watching a large amount of explicit paedophilia material and with a psychiatrist who was criticised in his role during the Lindt Café siege. These types of thoughts are consistent with my earlier findings about the father’s pattern of beliefs and further illustrate the father’s propensity to read hidden, demeaning and threatening meanings into work done by professionals of a benign nature. As I have found, the father’s system of thoughts and beliefs govern his behaviour.
The father, in his written submissions, states at paragraph two:
The father seeks that the mother’s so-called application (“non-application”) for a vexatious order be dismissed without being considered on the basis that is non-compliant with rules 2.01 and 5.01(6) of the Family Law Rules 2004 (Cth)(“FLR”).
Those rules provide that an application should be filed in writing using an Application in a Case.
The mother, however, in her trial affidavit says at [12.10] that she seeks the following order:
[The father] be restricted from lodging with the Family Court, any new applications or appeals about this matter.
At [13] she says that she would like to rely upon the court file and its long history.
I find that the father was sufficiently on notice to understand the order that the mother sought and was given ample opportunity to make written submissions. In so far as it is necessary, I will dispense of any rule that might otherwise have not been formally complied with in relation to this application.
If such an order was made, s 102QE(2) of the Act allows the father to apply to the court for leave to institute further proceedings.
Section 102QE(4) of the Act, however, provides the father must not serve a copy of that application for leave and the supporting affidavit on the mother unless an order is made (under s 102QG(1)(a) of the Act) to allow that to happen.
An order prohibiting the father from further instituting proceedings can be made if the court is satisfied that the father has frequently instituted or conducted vexatious proceedings in Australian courts (s 102QB(1)(a) of the Act).
The definition of “vexatious proceedings” in s 102Q(1) of the Act includes:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Section 102Q(1) of the Act provides that the word “proceedings” in relation to a court has the meaning given by s 4(1) of the Act which defines “proceedings” as meaning “a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connection with a proceeding.”
Section 102QB(6) of the Act provides:
6)For the purposes of subsection (1), the court may have regard to:
a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
b)     orders made by any Australian court or tribunal; and
c)    the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
This matter has a long history. Final parenting orders were made by Federal Magistrate Sexton on 20 December 2011. The mother made a new application for final orders on 1 June 2012. That application is finalised, at first instance, by the orders made this day.
During the hearing, a draft table was provided to the parties setting out the history of proceedings and which was marked Exhibit 88.
The following, expanded table sets out some of the history of applications which have been determined at first instance:

1.	Dickens & Dickens [2011] FMCAfam 1421– Sexton FM	20.12.11	Final parenting orders.	Orders for the mother to have sole parental responsibility (with conditions) and for the father to have alternate weekend time with the children to be extended an extra night upon completion of psychological treatment for 12 months.
2.	Dickens & Dickens Orders – Rees J	7.06.13	Suspended Sexton FM’s orders made 20 December 2011 granting children time with the father.	The father was to spend time and communicate with B as agreed between the parents. An order was made that the mother was to use her best endeavours to encourage B to spend time and communicate with the father. The father’s time with C was reduced to Wednesday after school and each Saturday. The issue of whether or not the children continue to see Dr F was dealt with by suspending that arrangement pending its further consideration. The parties and the children were ordered to attend Mr Q for counselling. The issue of whether or not that would be reportable was reserved.
3.	Dickens & Dickens [2013] FamCA 813 – Rees J	14.10.13	The father sought that the mother be dealt with for eight counts of contempt and 16 counts of contravention.	The father’s amended application filed 3.10.13 for the mother to be dealt with for contempt was dismissed, with the contravention application to be dealt with on a future date.
4.	Dickens & Dickens [2014] FamCA 1226 – Johnston J	18.03.14	The mother sought an urgent ex parte recovery order.	The mother’s application of 18.03.14 was allowed.
5.	Dickens & Dickens and Anor (No. 2) [2014] FamCA 1227– Johnston J	20.05.14	The father sought that the mother be found to have contravened a number of Sexton FM’s orders. In regards to order 4, the mother conceded that she had not informed the father in writing at least a month in advance or discussed with him the children going to therapy. Order 8 provided for weekend time with the father and the children which did not occur on 3.5.13. The mother says she had a reasonable excuse as B had run away from the father’s home. That was accepted as an excuse for why B stopped spending time with the father, but not C.	The mother was found to have contravened, without reasonable excuse, Orders 4 and 8 of Sexton FM’s orders. The proceedings for alleged contempt against Mr Levine and submissions in relation to sanctions were adjourned. The balance of the father’s application for contravention filed 3.10.13 was dismissed.
6.	Dickens & Dickens and Anor [2014] FamCA 1225 – Johnston J	4.9.14	Where the father sought that time be resumed between himself and the children.	Amongst other interim orders, the court found that no further time or communication should occur between the father and children pending further order.
7.	Dickens & Dickens and Anor (No. 3) [2014] FamCA 1228– Johnston J	16.09.14	Where the mother sought the appointment of a therapist to provide support to the children and the father sought unsupervised time with C.	Ordered counselling with Q. The interim order that no time was to be spent by C with his father continued.
8.	Dickens & Dickens and Anor [2015] FamCA 255 – Johnston J	27.01.15	The father withdrew his contravention application filed 15.10.13.	The father was ordered to pay Mr Levine’s costs. Leave was given to inspect the NSW Police subpoenas.
9.	Dickens & Dickens and Anor (No. 2) [2015] FamCA 256 – Johnston J	17.02.15	The father alleged that on 14.03.14, Mr Levine had disciplined and punished C in breach of clause three of the undertaking which Mr Levine gave to the court on 8.10.12.	The father’s Amended Application for Contempt filed 12.05.14 was dismissed.
10.	Dickens & Dickens [2015] FamCA 294 – Johnston J	10.04.15	The mother, having found to have contravened Sexton FM’s orders of 20.05.14, was sanctioned.	Paragraphs 1 – 3 of the father’s Application in a Case filed 05.03.15 were dismissed. The mother was placed upon a 12 month good behaviour bond.
11.	Dickens & Dickens [2016] FamCA 115– Watts J	1.3.16	The father sought that Justice Watts disqualify himself, that the proceedings be adjourned pending his appeals and that Dr AA and not Dr U be appointed as the single expert. The father also sought that orders made by Registrar Campbell on 09.10.14 to not remove the Independent Children’s Lawyer be discharged and that the Independent Children’s Lawyer be removed.	The father’s application that I disqualify myself; the father’s application to discharge the Independent Children’s Lawyer and the father’s application for the adjournment of the substantive parenting proceedings were dismissed. An order was made for the preparation of an updated Chapter 15 Expert Report by Dr U.
12.	Dickens & Dickens (No. 2) [2016] FamCA 361– Watts J	4.5.16	The father sought a stay of the orders made on 20.05.15 and 01.03.16 pending his appeals. The father also asked for the court to set aside a decision by Registrar Campbell on 12.04.16 to not issue a subpoena to two NSW police officers.	The father’s Application in a Case filed 11.04.16 was dismissed. The father’s Application in a Case filed 14.04.16 was dismissed.
13.	Dickens & Dickens (No. 3) [2016] FamCA 771 -Watts J	5.09.16	The father sought that parts of orders made on 20.05.15 and 1.03.16 be made “redundant”, that Dr U be excluded and the Independent Children’s Lawyer be discharged.	The father’s Application in a Case filed 9.5.16 was dismissed.
14.	Dickens & Dickens [2017] FamCA 572 - Watts J	3.08.17	The father applied for Dr U to answer questions to clarify his report. The father also applied for Dr U’s report not to be relied upon and that the Independent Children’s Lawyer be dismissed and no replacement be appointed.	The father’s Application in a Case filed on 25.05.17 was dismissed.
15.	Dickens & Dickens (No. 2) [2017] FamCA 750 - Watts J	25.09.17	The father sought a review of a decision of Registrar Campbell regarding a subpoena issued by the father to the NSW Police dated 10.12.15.	At his request, the father’s Applications in a Case filed 29.10.15 and 30.03.16 were dismissed. The father’s Application in a Case filed 09.03.16 was dismissed.
16.	Dickens & Dickens [2018] FamCA 373 - Watts J	28.05.18	The father sought that my reasons dated 26 July 2017 and 1 March 2016, the reasons of Johnston J dated 18 March 2014, 20 May 2014 , 4 September 2014, 16 September 2014, 27 January 2015 and 17 February 2015 and the Full Court reasons delivered 21 February 2017 should all be “revised and reissued to reflect the facts and the legal principles”.	Applications 2 and 3 of the father’s Application in a Case filed 11.09.17 were dismissed.

The father has filed seven applications to the Full Court seeking to appeal, or leave to appeal, the decisions of this court. All applications have been dismissed. The details of those appeals are set out in the following table:

Dickens & Dickens [2015] FamCAFC 54– Ainslie-Wallace J	14.04.15	The Application in an Appeal (EA 33 of 2015), filed by the father on 9.03.15 to extend time to file a Notice of Appeal against the orders of Rees J made 7.06 2013.	Dismissed.
Dickens & Dickens [2015] FamCAFC 54– Ainslie-Wallace J	14.04.15	The Application in an Appeal (EA 38 of 2015) filed by the father on 16.03.15 to extend time to file a Notice of Appeal against orders made by Johnston J on 16.09.14.	Dismissed.
Dickens & Levine; Dickens & Dickens [2017] FamCAFC 24 – Strickland, Ainslie-Wallace & Aldridge JJ	21.02.17	Leave to appeal and Appeal (EA 19 of 2015) filed by the father against orders made by Johnston J on 27.01.15.	Dismissed.
Dickens & Levine; Dickens & Dickens [2017] FamCAFC 24 – Strickland, Ainslie-Wallace & Aldridge JJ	21.02.17	The Appeal (EA 29 of 2015) filed by the father against orders made by Johnston J on 17.02.15.	Dismissed.
Dickens & Levine; Dickens & Dickens [2017] FamCAFC 24 – Strickland, Ainslie-Wallace & Aldridge JJ	21.02.17	Leave to Appeal and Appeal (EA 82 of 2015), filed by the father against an order by Watts J refusing to disqualify himself and refusing to adjourn or stay the proceedings.	Dismissed.
Dickens & Levine; Dickens & Dickens [2017] FamCAFC 24 – Strickland, Ainslie-Wallace & Aldridge JJ	21.02.17	Leave to Appeal (EA 43 of 2016 ), filed by the father against an order by Watts J on 1.03.16 appointing Dr U to prepare a report.	Dismissed.
Dickens & Levine; Dickens & Dickens [2017] FamCAFC 24 – Strickland, Ainslie-Wallace & Aldridge JJ	21.02.17	Appeal (EA 60 of 2016) filed by the father against orders of Watts J on 6.04.16 relating to directions in respect of subpoenas.	Dismissed.

The father has made three applications to the High Court, each of which have been dismissed below:

Dickens v Dickens &Anor [2017] HCASL 133	15.06.17	The father sought leave to appeal the decision made by the Full Court.	The father’s applications of S59/2017 and S60/2017 were dismissed.
Dickens v Dickens & Anor [2017] HCASL 134	15.06.17	The father sought leave to appeal the decision made by the Full Court.	The father’s applications of S61/2017, S62/2017 and S63/2017 were dismissed.
Dickens v Dickens & Anor [2017] HCASL 325	14.12.2017	The father applied to the High Court to remove these proceedings to the High Court.	The father’s application of s230/2017 was dismissed.

The father submits that the table (Exhibit 88) omits, or makes no comment about, other applications filed during the proceedings including:
(a)On 1 June 2012, the mother filed an initiating application;
(b)On 10 September 2012, Le-Poer Trench J made consent orders and Mr Levine gave an undertaking to the court;
(c)On 11 December 2012, the mother discontinued the application filed on 1 June 2012;
(d)On 16 April 2013, the father filed an application in respect of which consent orders were made on 22 April 2013; and
(e)The mother filed a new application on 3 May 2013.
The father also complains and takes issue with what happened during some of his contravention applications and other procedural events.
Proceedings numbered 11 to 16 in the above table were conducted before me. I find that all of them were instituted and pursued by the father without reasonable grounds as is demonstrably clear from the reasons given to those determinations. The material presented by the father, whilst acknowledging that he is highly intelligent and not legally represented, has been voluminous and prolix. The father has sought the same order more than once. For example, he has, on more than one occasion, sought to have the order appointing the Independent Children’s Lawyer discharged. I find that the proceedings before me numbered 11 – 16 were vexatious proceedings.
The father has also been unsuccessful in proceedings numbered 3 and 6 - 9 in the above table. Justice Rees on 11 October 2013, in her Reasons for Judgment (at [2013] FamCA 813), dealt with approximately eight counts of contempt brought by the father against the mother. She gave reasons for dismissing each one of them. As mentioned above, on 20 May 2014, the father was successful in prosecuting the mother on two counts of contravention. However, Johnston J made a notation at [5] on 20 May 2014, that “the proceedings against the mother have been unduly protracted by the father who is self-represented failing to confine his cross-examination to relevant matters”.
All of the father’s appeals to the Full Court were instituted and pursued without reasonable grounds as were the two applications for special leave to the High Court. All these proceedings satisfy the definition of “vexatious proceedings”.
As referred to above, on 11 September 2017, two weeks before the matter was set for final hearing to commence on 25 September 2017, the father filed an Application in a Case to vacate the hearing dates on the basis that on 5 September 2017 he had filed in the High Court an application for the removal of these proceedings to the High Court. The mother and the Independent Children's Lawyer agreed that the final hearing could not proceed in those circumstances. The final hearing was delayed. The father’s application to the High Court was dismissed. I have referred above to the comments made by the father in his application for the removal of these proceedings to the High Court. This application to the High Court was instituted and pursued without reasonable grounds and caused the hearing to be delayed and was a vexatious proceeding.
The father has brought proceedings in the Supreme Court of New South Wales suing the State of New South Wales Police, the Independent Children's Lawyer and the mother’s former lawyer based on an intentional tort alleging that they had caused the father mental and emotional harm arising from making and enforcing Family Court orders. The father indicated that his claims against the Independent Children's Lawyer and the mother’s former lawyers have been summarily dismissed. As mentioned above, the father has not appealed that decision. A costs order was made against him in favour of the Independent Children's Lawyer and the mother’s former lawyer and he is appealing that decision.
To quote Justice Fagan in the Supreme Court proceedings, “[the father’s] submissions and affidavits are invariably lengthy, repetitive, largely irrelevant and contain apparently farfetched allegations of conspiracy and wrongdoings by lawyers and police” (See Exhibit 73).
The father refers to this statement as an “out of context conclusionary statement”. The context in which his Honour made that statement was in a discussion about the difficulties the father would present in a contested cost assessment process in circumstances where Justice Fagan ultimately concluded that it was appropriate for him to assess the liability of the father to pay costs for the mother’s lawyers and the Independent Children’s Lawyer in a specified lump sum (see [18]).
In the final hearing that took place before me over five days, the father’s primary focus was upon the events between 14 and 18 March 2014. These events were discussed and dealt with during multiple applications and appeals. The application for final orders sought by the father were pursued without reasonable grounds. The proceedings were consequently vexatious.
It is sufficient for me to rely upon the nature of the father’s unsuccessful applications before me in proceedings numbered 11 – 16 in the above table and their quantity, to find that the father has frequently instituted and pursued vexatious proceedings. This frequency is only increased if regard is had to the unsuccessful application pursued by the father in the final hearing and the other proceedings instituted and pursued by the father which I have also found to be vexatious proceedings.
Accordingly, I find that the precondition in s 102QB(1)(a) of the Act is satisfied and the court, on the application of the mother and the Independent Children's Lawyer, may make an order prohibiting the father from instituting further proceedings under the Family Law Act in a court having jurisdiction under that Act.
When exercising discretion under s 102QB(2) of the Act, I take into account all the findings which I have made earlier in these reasons, including in particular, the discussion under the heading “The father’s mental status”. To date, the father has not exhibited any insight nor shown any ability to critically analyse what his treating therapists describes as a “flawed legal strategy”, notwithstanding, that that strategy seems to have left him jobless and homeless. Given the ages of the children, the effect of the order sought is of limited duration and is sought in circumstances where the father has not seen the children for many years. The significant motivation of the father has been to use whatever application he could to oppose any outcome he received that did not accord with his belief of what was a just result. He railed against any professional involved in the litigation directly or peripherally who did not totally accept his point of view. This has resulted in the expenditure of many hours of court time and resources and has unnecessarily involved and inconvenienced the mother.
Although the mother became an unrepresented litigant, she was for a considerable period of time legally represented and expended legal fees to be represented. The children want the litigation over. The extent of the litigation brought by the father has been damaging to the mother, the children and, indeed, to the father himself. The children are aged 17 and 15 and the father would need to satisfy the requirements of Rice & Asplund in any further application. However, as Dr U opined, that ongoing litigation will not be in the best interests of the children. The mother, who is the children’s sole caregiver is entitled not to be bothered in the future with litigation instituted by the father unless the court considers that there is good ground to give leave to the father to serve a new application upon the mother.
It is unlikely that the outcome of these proceedings will allow the father to feel that his children are safe nor will it give the father the sense that he has received justice. It is likely that he will appeal the outcome of these proceedings and that is his legal right. It is also likely that left to his own devices, he will bring further applications.
For the reasons stated I shall make a vexatious proceedings order as sought by the mother and the Independent Children's Lawyer.

I certify that the preceding three hundred and forty-eight (348) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 20 December 2018.

Associate:

Date: 20.12.18

[2018] FamCA 1109

20 December 2018

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Abuse of Process

Jurisdiction

Standing

Remedies