Leventis & Leventis (No 7) - [2024] FedCFamC1F 143

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Leventis & Leventis (No 7) [2024] FedCFamC1F 143

File number MLC 7710 of 2018

Judgment of WILSON J

Date of judgment 28 March 2024

Catchwords FAMILY LAW – PARENTING – abusive behaviour by father – denigration of the mother by the father – children under the primary care of the father for nearly two years – family violence – application by mother for sole parental responsibility – orders made in accordance with the mother’s proposal.

Legislation Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 65L, 69ZT, 102NA

Cases cited
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Banks & Patel [2024] FedCFamC1F 64

Carr v Western Australia (2007) 232 CLR 138

Commonwealth v Yarmirr (2001) 208 CLR 1

Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

Eastley & Eastley [2022] FedCFamC1A 101

Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235

DPP v Le (2007) 232 CLR 562

Galea v Galea (1990) 19 NSWLR 263

Gin v Hing (2019) 63 Fam LR 258

Holloway v McFeeters (1956) 94 CLR 470

Isles v Nelissen (2022) 65 Fam LR 288

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Malec v JC Hulton Pty Ltd (1990) 169 CLR 638

Minister of Lands v Jeremias (1917) 23 CLR 322

Northern Territory v Collins (2008) 235 CLR 619

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Rice v Asplund (1978) 6 Fam LR 570

Richter v Richter (2019) 63 Fam LR 102

Roy Morgan Research Centre v Commissioner of State Revenue (2001) 207 CLR 72

Southwest Water Authority v Rumble’s [1985] AC 609

Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193

Taylor v Public Service Board (NSW) (1976) 137 CLR 208

Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590

Yanner v Eaton (1999) 201 CLR 351

Division Division 1 First Instance

Number of paragraphs 183

Date of last submission 8 February 2024

Date of hearing 7 and 8 February 2024

Place Melbourne

Counsel for the applicant Mr Leslie Glick KC

Solicitors for the applicant Lander & Rogers

Counsel for the respondent Mr Cameron Allen

Solicitors for the respondent TFA Legal
ORDERS

MLC 7710 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN
MS LEVENTIS
Applicant

AND
MR LEVENTIS
Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

28 MARCH 2024

THE COURT ORDERS THAT –
Parental responsibility
1.The mother has sole parental responsibility for the children X born 2008 and Y born 2011.

Suspension of time
2.All previous parenting orders are discharged.
3.The children shall live with the mother.
4.The mother shall collect the children from the Commonwealth Law Courts, Melbourne after delivery of these orders.
5.The father, his servants and agents, be and are hereby restrained from attending the Commonwealth Law Courts, Melbourne after the delivery of these orders.
6.The father, his servants and agents, must immediately leave the premises of the Commonwealth Law Courts, Melbourne after delivery of these orders.
7.From the date of these orders until the expiration of six months –
(a)the children are to spend no physical face to face time nor have any communication with the father;
(b)the father, his servants and agents, be restrained from approaching, contacting or communicating with the children, or allowing or facilitating the children to enter his residence; and
(c)the father, his servants and agents, be restrained from attending E School and/or G School; and
(d)the father, his servants and agents, be restrained from being within 1 kilometre of the mother’s residence, G School and/or any venue at which the children attend for extracurricular activities.

Section 65L family consultant
8.Pursuant to section 65L of the Family Law Act, the parties do all acts and things to jointly engage a 'Regulation 7' family consultant, to be appointed by the Federal Circuit and Family Court of Australia, as soon as practicable upon the making of these orders at the expense of the father, and the family consultant as far as practicable –
(a)supervise the parties' compliance with these parenting orders; and
(b)give any assistance to the father and mother as is reasonably requested by that parent in relation to compliance with, and the carrying out of, these parenting orders;

and the parties shall do all such things, sign all such documents, attend all such appointments and ensure the children attend all such appointments as are reasonably necessary for such supervision and compliance with these orders to occur.

Family therapy
9.The mother and father must use their best endeavours to facilitate the children's attendance on an agreed and appropriately qualified family therapist, for resumption of family therapy for the children and the mother and father must follow all reasonable recommendations of that therapist as to the prerequisite conditions, manner, and frequency of such therapy.
10.In the event a family therapist cannot be agreed within 30 days, then the parents must forthwith request that Ms Z recommends another appropriately qualified therapist to be engaged by the father and mother for family therapy on a confidential and non‑reportable basis.
11.Each of the father and mother is permitted to provide a copy of the following family reports prepared in this proceeding to any treating professional of the children or parties, or any of them, including but not limited to any family therapist, family consultant, counsellor, psychologist, and/or child welfare agency, for the purpose of matters relating to the care, welfare and development of the children –
(a)family report of Ms Z dated 26 October 2020;
(b)family report of Ms Z dated 16 October 2022; and
(c)family report of Mr AA dated 26 September 2018.

12.The family therapy to be undertaken by the father, the mother and the children in accordance with these orders shall be at the equal cost to the parents, and sessions with the individual parents and/or one parent with the children (without the other parent) shall be at the attending parent's cost and if individual therapy is ordered, it shall be at the attending party's cost.

Time arrangements after six months
13.Commencing the expiration of six months from the date of these orders, for a period of eight consecutive weekends thereafter, the children shall live with the mother and spend time with the father as follows –
(a)each alternate weekend, from 10.00am to 5.00pm on Saturday and 10.00am to 5.00pm on Sunday;
(b)via electronic communication by way of telephone or video calls each alternate Sunday between 8.00pm to 8.30pm;
(c)from 1.00pm until 9.00pm on Father's Day (if Father's Day falls within the eight-week period); and
(d)from 3.30pm until 9.00pm on Christmas Day (if Christmas Day falls within the eight-week period).

14.Commencing the expiration of the eight-week period pursuant to the preceding paragraph of these orders and thereafter, the children shall live with the mother and spend time with the father as follows –
(a)each alternate weekend from the conclusion of school (or 3.00pm if a non-school day) on Friday until the commencement of school (or 9.00am if a non-school day) on Monday; and
(b)via electronic communication by way of telephone or video calls each alternate Sunday between 8.00pm and 8.30pm.

15.Commencing the expiration of 12 months from the date of these orders, the children shall live with the mother and spend time with the father for three nights each fortnight on days agreed between the father and mother in writing from time to time, and in default of agreement –
(a)from the conclusion of school on Friday (or 3.00pm on a non-school day) until the commencement of school on Monday (or 9.00am if a non-school day) and each alternate week thereafter;
(b)any such other times as may be agreed between the father and mother in writing.

Changeovers
16.All changeovers are to occur at the children's school/s on a school day and otherwise at the supermarket, BB Street, Suburb CC on a non-school day unless otherwise specified in these orders or as may be otherwise agreed in writing between the father and mother from time to time.
17.If changeover is to occur on school days, any extra items required but not carried by the children to school to be transferred by mutual agreement that evening at a location or time agreed by mutual agreement, and in default of agreement at 9.00am at the supermarket, BB Street, Suburb CC on the same day as changeover.
18.If the children spend time with a party during the other party’s time with the children, “make up” time will be offered as soon as practicable afterwards at a time agreed by the father and mother, and if no agreement can be reached within 14 days, then the mother will nominate a reasonable time.

Special occasions
19.Commencing the expiration of 12 months from the date of these orders and unless otherwise specified in these orders, the children’s time with the mother or the father shall be suspended to allow the children to spend special occasions with each parent as follows –
(a)during Christmas, New Year's Day, Mother's Day, Father's Day and non-Orthodox Easter as follows –
(i)each year from 10.00am until 3.00pm with the mother, with changeover if required at a convenience store, DD Street, Suburb EE.
(ii)each year from 3.00pm until 8.00pm with the father with changeover if required at a convenience store, DD Street, Suburb EE;

(b)during the long summer holidays, for a period of one week with the father on dates to be agreed, and in the absence of agreement then from 10.00am on the Saturday immediately following the conclusion of school on the last day of term four until 10.00am the following Saturday;
(c)on Orthodox Easter Sunday each year from 2.00pm until 8.00pm, unless this falls on the same weekend as non-Orthodox Easter, and the father will be responsible for collecting the children at the commencement of his time from the supermarket, BB Street, Suburb CC and returning the children to the mother’s residence at the conclusion of time;
(d)on the children’s birthdays, the parent with which the children are not staying with will be entitled to spend time with the children for up to two hours if a school day, or three hours if not a school day with collection and pick up from the supermarket, BB Street, Suburb CC. The time shall be as agreed, or in default of agreement then from 5.00pm to 7.00pm on a school day, and from 11.00am to 2.00pm on a non-school day; and
(e)such further or other times as may be agreed between the father and mother in writing.

Schooling
20.The father and mother must do all acts and things necessary and sign all such documents required to keep the children enrolled at their current schools and facilitate their attendance at their current schools.
21.Other than the activities in which the children are enrolled by agreement, including sports, neither party will enrol the children in any extracurricular activities without the prior written consent of the other party if the activity is foreseen to interrupt the other party’s time with the children.
22.Both parents be entitled to attend all school and extracurricular events in which the children participate, save that if they are to attend an extracurricular activity during the week in which the children ae living with the other parent pursuant to these orders, then written consent is required from the other parent.

Communication
23.Each parent must do all things to reasonably facilitate the children contacting the other parent during reasonable hours (and such telephone contact must cease prior to 9.00pm) or if the child expresses need for assistance with homework or like activities from the other parent.
24.Each party must keep the other parent informed of the names, addresses and telephone numbers of all medical professionals or health care providers who treat the children, and authorise any medical professional or health care provider in writing to provide the other parent with copies of any test results, letters of referrals, reports and letters received from other medical professionals, and to discuss any aspect of the children’s health with the other parent.
25.The father and mother must inform each other at the earliest possible opportunity upon becoming aware of any of the following in relation to the children –
(a)any illness or injury requiring a medical examination or medical consultation;
(b)any illness requiring the provision of medicine prescribed by a medical practitioner;
(c)any hospital attendance;
(d)any proposed dental treatment;
(e)any proposed treatment with any other health professional, including all details as to the health professional and the time of the appointment; and
(f)any other issue of concern in relation to the children’s health, wellbeing or behaviour, including any issues of concern raised by the children’s schools, or relating to the children’s education, welfare or behaviour.

26.Each party must keep the other informed at all times of his and her residential address, home and mobile telephone numbers and email address, and advise of any changes to their contact details within 48 hours of such change.

Specific issues
27.In the event there is a dispute in the future concerning changes in the children’s circumstances, any concerns with respect to the education of the children or any other matter concerning the long-term care welfare and development of the children, then the father and mother shall engage the services of the Family Dispute Resolution Centre, with each party to bear his and her own costs, the father and mother must endeavour to reach agreement, but if no agreement can be reached then the mother shall have sole parental responsibility for the children.
28.Each party is restrained from denigrating the other or each other’s family members in the children’s presence or hearing, discussing this proceeding with the children, communicating or passing messages through the children, or exposing the children to family violence.
29.The father and mother have liberty to apply for the matter to be listed before the judge in charge of urgent out of hours applications in relation to any issues of enforcement of these parenting orders and that the matter be listed before the judge in charge of urgent out of hours applications as soon may be convenient to the court.
30.If the father any way refuses, neglects, fails or otherwise is unable to substantially facilitate the children spending time with the mother in accordance with these orders, the mother is at liberty to make urgent application to the court in respect of parenting matters and the re-opening of these orders if they are unable to be implemented and complied with, and the mother is not prevented from doing so by virtue of the rule in Rice v Asplund.[1]
[1] (1979) 6 Fam LR 570.
31.All extant applications are dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION

Subsequent to the resolution of the property component of this proceeding, the parenting aspect of it continued before me on 7 and 8 February 2024.
An order was made by me pursuant to s 102NA of the Family Law Act for the father to be represented by counsel. In response, Mr Allen of counsel duly appeared. Mr Glick KC continued to represent the mother.
The mother has not seen the two children in issue in this case for over two years. Three family reports went into evidence. The first was of Mr AA dated 26 September 2018 and the second and third were of Ms Z dated 26 October 2020 and 16 October 2022 respectively. Alienation was opened as being the principal point in this case.[2]
[2] Transcript 7 February 2024 T 6 L 40.
In essence, the mother sought orders[3] in accordance with an annexure to her application. She sought an order for sole parental responsibility for the children and for the children to live with her. She also sought an order the operation of which was to commence on the expiration of six months of the orders I should make, the effect of which was to ensure the children had no face to face time with the father or any communication with him, that he is restrained from approaching the children and, among other things, attending the children’s school. The mother also sought orders, the commencement of the operation of which was six months after my judgment in this proceeding, pursuant to which the children live with the mother and spend time with the father in accordance with a complicated regime that she proposed. The full details of the mother’s proposal are set out in these reasons below.
[3] Those orders were recorded in the mother’s fourth further amended initiating application sealed 6 November 2023.
The father, with whom the children have been living for two years, proposed a simpler regime for his time with the children. His proposals in this case are set out in these reasons below.
CERTAIN ISSUES ARISING FROM THE EXPERTS
Before descending to the minutiae of the competing proposals and applying the relevant provisions of the Family Law Act, it is utile to record the more important matters that emerged from the reports of Mr AA and of Ms Z.
Taking first Mr AA’s 26 September 2018 report, a précis of those issues may be briefly stated. They included –
(a)the daughters were aged nearly 10 and seven in 2018;
(b)as at the date of Mr AA’s report, each child spoke favourably about equal time with her mother and father with a continuation of the then prevailing week about arrangement;
(c)according to the mother, neither parent communicated with the other parent;
(d)the father was injured in an accident in mid-2015 and, like the mother, he has remained single since the parties’ verbal separation in December 2016 and subsequent physical separation in September 2017;
(e)as at the date of Mr AA’s report, the children appeared to maintain a positive relationship with their mother suggestive of there being a relationship between them that was “close, warm and loving” (his words);
(f)Mr AA recommended equal shared parental responsibility for the children;
(g)he recommended each child live with both parents on a week-about parenting regime; and
(h)he recommended that the parents have equal shared term holiday time and that they share Christmas holiday time, Easter and other significant time.

In a temporal context, it must be said that Mr AA’s report was several years in the past. The children are almost six years older now and each has more entrenched views of her present circumstances.
When the trial of this proceeding was before me in February 2023, Mr AA was cross-examined with Ms Z using the hot tub method of concurrently cross-examining experts. All parties agreed to the process with Mr AA and Ms Z helpfully participating.
Mr AA and Ms Z agreed while concurrently giving their evidence in cross-examination that the mother’s diagnosis of a medical condition would not impact on her parenting. Each of Mr AA and Ms Z gave concurrent evidence that “brain fog”, as was described by Dr FF as being a condition manifested by the mother in severely reduced attention span and concentration, poor short term memory, episodes of confused thinking, at times feeling disoriented and encountering difficulty processing new information, was relevant to the mother’s parenting capacity. Each of Mr AA and Ms Z also gave concurrent evidence that Dr FF’s observations about the mother manifesting significant mood swings and the inability to tolerate even normal amounts of stress was relevant to parenting. Similarly, Dr FF’s observations about unsatisfied and unrefreshing sleep creating a situation where the mother is constantly sleeping but cannot sleep and then requires long periods of time in bed, up to 14 hours a day, was relevant to parenting. Ms Z gave evidence that she knew the mother suffered from a medical condition.
Turning to the evidence of Ms Z, she exhibited her 26 October 2020 report to her 6 November 2020 affidavit. In that report, the more significant issues that emerged included the following –
(a)Dr GG, a psychologist, concluded that neither parent suffered from a psychiatric condition which compromised his or her parenting nor did either suffer from a psychiatric condition that placed the children at risk, although Dr GG indicated that the father may be more controlling than the father was willing to admit;
(b)each child has a good relationship with each parent (as at the date of that report in late October 2023);
(c)when it was operative, each child was happy with the week-about routine;
(d)each child was doing well at school;
(e)as at the date of the report each parent was civil and cordial in front of the children;
(f)that said, little trust existed between them, they communicated with one another poorly and they displayed little by way of cooperative parenting;
(g)equal shared care requires a cooperative and aligned parenting relationship, mutual respect as parents, good communication, joint decision making, consistency and continuity of care none of which do exists in the relationship between the mother and the father;
(h)the father exhibited to Ms Z’s way of thinking conduct that enabled Ms Z to make observations of coercion felt by the mother with the father taking control of the decision making process;
(i)equal shared care was incongruous in the circumstances of the case;
(j)an abusive dynamic exists with a power imbalance being encountered by the mother, supporting a conclusion that equal shared parenting responsibility for the children cannot be recommended by Ms Z; and
(k)the mother needed to have a greater capacity to make parenting decisions.
Both Mr AA and Ms Z recommended the establishment of time between the mother and the children using family therapy. Each agreed a therapist may need to deal with the children separately from the other and to address the possibility that one child refuses to see the mother.
In her second report, it being dated 16 October 2022, Ms Z reported on ways to repair the mother/child relationship. The important issues that emerged from her report included the following –
(a)the eldest was then almost 14 and the youngest was 11 years of age;
(b)the parents had been separated for about five years;
(c)since June 2022 the children had refused to spend time with, live with or communicate with the mother;
(d)both parents assert that the children are at emotional and psychological risk while in the other’s care;
(e)each parent perceives the other as the hostile parent;
(f)the children reported that they considered that the mother lied about everything;
(g)on certain issues, the eldest daughter’s narrative was rehearsed while the youngest found “it easy to stay” on the father’s side;
(h)the children reported that they lied to Ms Z in the previous interview as they wish only to live with the father;
(i)the children ascribed their positive attributes to the father and their negative attributes to the mother;
(j)the children’s disclosure of being fearful of the mother was devoid of any congruent emotional or behavioural response and their narrative was rehearsed with generic claims of abuse;
(k)the children’s complaints against the mother have a modicum of truth but are embellished to a degree which is not consistent with what seems to have occurred, especially when considered against the mother’s account and in any event, the children’s accounts seem to be inflated to a degree which does not warrant their removal from the mother’s care;
(l)Ms Z expressed concern that the children had not been truthful when previously expressing their views indicating that the children were under considerable pressure;
(m)the evidence of the children about their wishes was undermined and whatever they said previously cannot be seen as being valid nor can due weight be given to it by the court; and
(n)a real risk exists that unless the children immediately resume their time with the mother of at least a week about, the children will cease all connection with her and it is essential that the children have every opportunity to preserve and sustain their relationship with the mother.
In paragraph 43 of Ms Z’s report, she said that control rests with the parents and not the children. Ms Z said that if the arrangement for equal time between the parents cannot be maintained, then the primary care for the children should revert to the other parent. In paragraph 44 of her report Ms Z said that the risk is higher and more worrying if there are forces of alienation at play.
She recommended both parents engage with a therapist.
In paragraph 38 of her report, Ms Z stated that the children had been under pressure to give evidence which (according to paragraph 39) stated that evidence of a misrepresentation by the children undermined the strength of their wishes with the consequence that their wishes could not be seen as valid and those wishes cannot be given due weight by the court.
In paragraph 41 of her report, Ms Z said that “there is a real risk that unless the children immediately resume their time with their mother of at least week about, they will lose all connection with her”.
Ms Z said a section to the week about could be considered an option.
Ms Z reported that in her view, the best prospects of improved parenting relations and relations as between the children and their parents was through a therapeutic process involving one of a number of practitioners.
During the course of their concurrent evidence, Ms Z said that the children desire a relationship with their extended family. Ms Z was asked questions about a recording made by the father (details of which appear below) in which the children’s aunt was alleged to have said to the children words to the effect that in this day and age a nuclear family was not necessary.[4] Ms Z opined that at best such a comment was unhelpful and amounted to a form of abuse.[5] Ms Z gave evidence that such a comment immersed the children in the litigation and it reinforced the concept of abandoning or alienating the mother and that such a comment adds to the negative perception of the mother. Ms Z gave evidence that the words recorded as having been uttered by the father that the family consultant (Ms Z) was “extremely biased” added weight to the position that there was no benefit in the children seeing their mother.
[4] Transcript 13 February 2023 T 397 L 9.
[5] Transcript 13 February 2023 T 397 L 10.
Ms Z was asked about the apparent change of view held by the children in respect of the mother as was recorded in Ms Z’s report dated October 2022. On behalf of the mother, Mr Glick KC put to Ms Z whether the conversation recorded by the father in the car immediately following the September 2022 interview with Ms Z indicated to Ms Z that the eldest daughter was reporting back to the father about matters the daughter had been asked to say and how well the daughter had performed at the meeting with Ms Z.[6] Ms Z said it did.
[6] Transcript 13 February 2023 T 401 L 37.
Ms Z continued to address the issue of alienation, saying that she regarded it as being harmful to the child when the father and the children’s aunt told the eldest child that the children do not need a nuclear family. Ms Z said[7] such observations sent a very clear message that the child was not supported in any relationship between the mother and the child. Ms Z said that a parent-child relationship is important. Ms Z said alienation was to be reckoned against a spectrum ranging from mild rejection by the child of his or her parent or parents and it includes reasonable rejection as well as deliberate influencing by one parent of the child against the other parent. At the extreme other end of the spectrum was severe alienation where the child rejects one or other parent and refuses to see a parent.[8] Ms Z gave evidence that the harm to the child can be extensive in that the child holds those views, often embellished views, of the other parent for quite some time and it takes quite some time to undo that kind of damage to the relationship. She said that in this case, the children “have not been given permission to have a relationship with their mum”.
[7] Transcript 13 February 2023 T 403 L 33.
[8] Transcript 13 February 2023 T 404 L 4-10.
So far as proposed orders were concerned, Ms Z gave evidence that if the parents are genuine, a therapeutic process has a good chance of success. Ms Z said the youngest child was indicating that that child missed her mother.
Ms Z gave evidence that she was unable to predict the likelihood of the children participating in steps recorded in an order for them to spend time with their mother, having regard to their ages. Ms Z also gave evidence[9] that care must be taken in formulating the orders in case an escalation occurs in the relations between the children and their parents.
[9] Transcript 13 February 2023 T 409 L 12.
SETTLEMENT OF THE PROPERTY PROCEEDING
After this proceeding had progressed some considerable distance, in February 2023 the parties settled on all issues other than parenting. The parenting component of the case proceeded in February 2024, the mother and father being the only two witnesses who gave viva voce evidence. The expert evidence had been given in 2023, as has already been recorded. On the resumption of the trial on 7 February 2024, Mr Glick KC announced before evidence was adduced, he having conceded that the parties’ consensual position was not to re-open, that the alienation was the major issue and that –
(a)the mother sought orders in accordance with her fourth amended initiating application;
(b)no further expert evidence would be called;
(c)the mother opposed the father’s application for the children being supervised while in the mother’s care; and
(d)the five member decision of the Full Court in Isles v Nelissen[10] required consideration to be given about the distinction between historic fact finding being made on the balance of probabilities and evidence of future events being predictive in nature.[11]
[10] (2022) 65 Fam LR 288. I canvassed that decision in Banks & Patel [2024] FedCFamC1F 64.
[11] The decision in Malec v JC Hulton Pty Ltd (1990) 169 CLR 638 was also said to be relevant.
A folder of documentary material relevant exclusively to the parenting aspect of the case was marked as an agreed exhibit. For the mother, the material on which she relied included the following –
(a)the mother’s affidavits made 19 August 2022, 31 January 2023 and 6 November 2023 together with the exhibits to those affidavits; and
(b)the report of Dr GG of 8 May 2019, the two reports of Ms Z plus the affidavit of Dr FF.
For the father, the material on which he relied included the following –
(a)his affidavit made 17 August 2022;
(b)the affidavit of Ms HH made 17 August 2022;
(c)the affidavit of Ms JJ made 19 August 2022; and
(d)the report of Mr AA made 19 August 2022.
In her evidence in chief, the mother adopted her affidavit made on 6 November 2023 along with the exhibits to that affidavit. The more salient matters that emerged from that affidavit were as follows –
(a)in May 2023, when the property component of this litigation was resolved, the mother and father purported to also resolve the parenting aspect of the litigation yet the in‑principle parenting agreement broke down so orders were made as late as 12 September 2023;
(b)the children have not spent any meaningful time with the mother since June 2022;
(c)since June 2022, the children have refused to spend time with the mother and, according to the mother, the father does not promote or facilitate a relationship between the children and their mother;
(d)according to the mother, the tape recordings made by the father demonstrate his continued alienation of the mother’s relationship with the children;[12]
(e)the mother continues to hold concerns for the emotional and psychological safety of the children;
(f)by text message sent on 28 October 2023, the father informed the mother that he “was not comfortable conversing directly” (his words) with the mother and that she should communicate through solicitors;
(g)the mother seeks final parenting orders that provide for the immediate return of the children to the mother’s care for a period of six months during which time the mother solely cares for the children;
(h)if the children remain in the father’s care, a breach of the August 2018 orders is perpetuated and the mother fears that the father will never permit the children to see the mother again;
(i)over Easter 2023 the mother said she endeavoured to see the children but that the father refused, asserting that the children did not want to go with her when in truth (according to the mother) the father refuses to promote the mother’s relationship with the children;
(j)the mother attempted to see the children on the birthday of the youngest child in 2023 but the father sent a text message to the mother asserting that the children were vehemently opposed and they refused to go;
(k)the father agreed to bring the children to the mother on Mother’s Day, 14 May 2023 and shortly after midday the father sent a text to the mother stating that the children refused to leave the bathroom in order to go to the mother’s home; and
(l)by 3.12 pm the children arrived at the home of their maternal grandparents yet they refused to leave the car while the father sat in the car with them.
[12] Even recognising that s 69ZT of the Family Law Act provides that in certain respects rules of evidence do not apply to a child related proceeding of which this is one, paragraph 15 of that affidavit was a submission.
The efforts made (or not made) by the father during the visit to the children’s maternal grandparents assumed a degree of importance. A transcript of a recording made on that occasion was put in evidence. Naturally, as the mother was not privy to those conversations she was unable to say what was said by the father and by the children in the father’s attempt to promote the children to get out of the car. As is explained below, in my view the father behaved very badly and very far from the manner in which a parent should behave when the children had been brought to the home of the maternal grandparents, one of whom was in poor health. The mother narrated the episode in the following terms under trial affidavit –
45. [Mr Leventis] and I ultimately agreed for the children to be told that they were visiting [Mr Leventis's] parents at their [property]. At approximately 3:12 pm, the children and [Mr Leventis] arrived at my parent's home. However, the children did not leave the car, and [Mr Leventis] and the children remained in the car with the windows rolled up.
46. Initially, my mother and sister went to see the children to attempt to bring them inside my parents’ home. The children refused to come inside. I then went outside to speak to the children, and attempted to do so through a small gap in the car window of about 3 centimetres. I told the children that I loved and missed them, and asked them about events that I knew had happened at school and their extra-curricular activities. The girls refused to engage with me.
47. [X] then proudly told me that she had told her friends that I "hit [her] every day". I told [X] that I understood that she was confused, but that this was untrue. I was incredibly concerned as to why [X] was saying this. It was deeply distressing.
48. I then told the children that we did not need to talk about anything that had happened between us if they did not want to, but I would of course be happy to talk to them about what had happened if they wanted to. Again, the children refused to engage with me.
49.At this time, [Mr Leventis] remained in the car and did not get out. He just sat there and listened, and did not allow me and the children any privacy to speak openly. He did not make any serious attempt to get the children to go inside and spend time with me and my family.
The mother deposed that she and the father agreed that the father would deliver the children to the mother’s care on 22 May 2023. She stated that shortly after 4 pm on that day the father sent the mother a text to the effect that the children refused to go to the maternal grandparent’s home. The mother said she informed the father by text that the father was required to bring the children to her home not to the mother’s parents’ home.
According to the mother, on 25 May 2023 the mother sent the father an email requesting the details of the time and location where the mother could see the children. In response the father told the mother as follows –
"Please stop phrasing your messages in this way to push your narrative that I disagree with. I have encouraged the children to visit you and your family and you are aware of their position. I will again encourage them.”
The father’s response just recorded was provocative, antagonistic and not reflective of cooperation. The mother’s request was simple and tolerably polite. It was not phrased in the manner asserted by the father, namely, in a manner that pushed the mother’s narrative. The mother deposed to other unsuccessful endeavours during May 2023 when her attempts to see her children were thwarted by the father.
The mother’s position did not improve during June 2023. The father communicated with the mother by text stating that the children would not go with the mother. Having heard the father give his evidence during several days cross-examination, I entertain very real doubt that the father made any genuine attempt to ensure the children actually saw the mother during May or June 2023. Even when unrepresented, in August 2023 the father persisted in his assertions that the mother made allegedly unfounded allegations about the father’s failure to genuinely facilitate time between the mother and the children. The mother deposed to the father sending the mother self-serving text messages and accusing the mother of harassment rather than actively engaging in the mother’s proposal.

The mother deposed to her concerns that the eldest child was suffering from poor mental health. The mother also expressed her concerns about the youngest child doing the same as the eldest child does, doing whatever the father wants in order to please him. One or both of the children has withdrawn from sport, the mother deposed.
The mother accepted in cross-examination[13] that the youngest daughter became unsettled when the mother attended the children’s school because the child was not expecting the mother. The mother denied that she had contributed to the children’s feelings towards the mother by such behaviour as attending at the youngest child’s school.
[13] Transcript 7 February 2024 T 22 L 24.
The mother was unable to say whether the children were particularly close to one another because the mother said she had not seen the children in 18 months. The mother said in answer to a question put to her in cross-examination that if doing something involved going against their father that “I don’t think they can”.[14] The mother deposed to the father’s influence upon the children being a risk. She said that if the children remain in the father’s care alienation of the mother will only become accentuated. The mother disagreed with the proposition put by counsel for the father, namely, that the father records the mother because the father fears he will be misquoted by the mother.
[14] T 28 L 20.
As to precisely what the mother wanted the father to do by way of his encouragement of the children’s time with the mother, in cross-examination the mother said the father must stop letting the children think that she has hurt them and implying that the mother is always doing the wrong thing. She said the father has to do that by his behaviour.[15]
[15] T 34.
The mother’s case closed at the conclusion of her cross-examination, there being no re-examination.
The father’s counsel opened in reliance upon the father’s affidavits made 17 August 2022, 1 September 2022, 28 June 2021 and 6 February 2024.
In cross-examination by Mr Glick KC, the father was challenged about his assertion in paragraph eight of his affidavit made 31 August 2022. In that paragraph, the father asserted that once parenting orders were agreed following the earlier phases of this trial, the mother refused to sign the orders. In cross-examination the father admitted to not knowing what was discussed when negotiations to settle were underway because he was not present. The father also admitted that the father’s own solicitors told the mother’s solicitors that the father refused to sign the proposed documentation – rather than the situation involving any refusal by the mother. The father was challenged about his assertion that family therapy with Dr O was paused because the mother gave up, offering a series of reasons for giving up. The father was shown a letter from Dr O (a member of the practice of Mr T) who wrote to the mother and the father stating that the family therapy involving the parents and the children would not proceed because of the children’s unwillingness to participate. The father admitted that Dr O wrote that, and that the single reason for stopping the family therapy was as stated by Dr O.
Pausing there, on those two subjects about which the father was cross-examined, the father admitted that the evidence in his affidavit on those issues was not as he said it was. I became concerned that the father was or may be falling short in his duty to tell the truth, the whole truth and nothing but the truth about which the High Court stressed the importance in Kuhl v Zurich Financial Services Australia Ltd.[16] I carefully scrutinised the father’s evidence in the overall to ensure his version of events was exhaustive and accurate, especially having regard to the other evidence he said he included in a passage in his affidavit “to criticise the wife” (his words). It was plain to me that the father was driven to criticising the mother any way he thought appropriate. When questioning during cross-examination unsettled him and the answer ought to have been freely given, even if against his interests, he frequently resorted to answering by stating that he did not recall a particular thing which he ought to have recalled. In the passages below I record some of the more significant “I don’t recall” responses by the father.
[16] (2011) 243 CLR 361.
Mr Glick KC put to the father that at no time did the father actually put forward in concrete terms a proposal by which the mother might connect with her daughters. A telling exchange[17] followed –
Mr GlickOkay. But you never volunteered what you should do ever, did you? You never proactively stood up and said, “Well, I’ve got another suggestion. I want my children to bond with their mother. I would – I really want it. It’s a positive thing. It’s necessary for the daughters to grow up well-rounded people. Therefore, why don’t we try this”?
[Mr Leventis] I’m not an expert. That’s why I requested family therapist - - -
Mr GlickOkay?
[Mr Leventis] - - to intervene.
[17] T 53 L 37 – 43.
The father was challenged about his response to the mother’s urgent requests for family therapy. The following[18] was the relevant exchange –
Mr GlickNow, then, we go to a letter of 22 December, which is page 9. If you look at the third paragraph:
Our client is still not aware of what steps you actually have taken in this regard. This is particularly in circumstances where you have not agreed to take further steps in respect of agreeing or engaging in a therapeutic counsellor despite our client’s previous requests for your proposals in this regard. It remains clear that urgent therapeutic intervention is required for both children.
[18] T 54 L 4 – 27.
Mr GlickSo you will see there the mother is agreeing urgent therapeutic intervention is required for both children. Do you see that?
[Mr Leventis]      Yes.
Mr GlickWhat was your response to that?
[Mr Leventis]      I don’t remember exactly.
Mr GlickWhat was your response?
[Mr Leventis]      I mean, you can tell - - -
Mr GlickYou’ve made allegations both in writing in your affidavit and just before that it was the wife who was blocking therapy. Here, you have the wife saying:
…urgent therapeutic intervention is required.
Mr GlickI want to suggest to you that there was absolutely silence from you – no response. You made - - -?
[Mr Leventis]      Okay.
The father endeavoured to slough off the import of the request for urgent family therapy by asserting that he was overwhelmed. By what he may have been overwhelmed he did not say. The mother had not spent time with her daughters for a very considerable time and despite her many requests for such interaction with the children, the father failed to provide any such interaction, contending instead he was overwhelmed. He seemed to be not sufficiently overwhelmed to write a litany of blunt, direct and thoroughly obstructive emails and text messages to the mother volunteering an array of reasons why he was unable to procure the children to organise themselves so as to see the mother. It must not be forgotten that the father is a highly educated man, holding tertiary qualifications. While I recognise that high achievement in academia does not necessarily equate with an ability to overcome a sense of being overwhelmed, I regarded the father’s answer to the questions about his response to the mother’s urgent request for family therapy as being most unsatisfactory. She had not seen the children for a substantial time. He had been less that proactive in assisting in the quest for family therapy. The point was exposed in the father’s evidence[19] as follows –
Mr GlickWell, the answer is, “Yes,” [Mr Leventis], because you’re the one that says to his Honour it’s the wife’s failure to engage with therapy and failure to acknowledge therapy. And here is exactly the opposite?
[Mr Leventis] Yes.
Mr GlickYou’re the one that’s too busy to respond?
[Mr Leventis] A few weeks ago. I’ve been asking for this for a very long time.
[19] T 55 L 4 – 9.
The father placed store in his views that the mother wanted him to challenge the children’s reality. The following[20] exchange emerged –
[20] T 56 L 34 – T 57 L 2.
Mr GlickI just have a question to ask you. What did you mean when you said to the mother:
You are asking me to doubt the children’s reality.
They’re your words?
[Mr Leventis]      Well, I just explained. There’s a long history, and you’re asking me to tell them that they haven’t been telling the truth the whole time since 2019.
Mr GlickOr to sit down and say – well, let me go back a step. Do you recall – it’s in your affidavit – you put a reference to the word “yelling”, I think, and “screaming”, that what the children might regard as yelling and screaming is not what an adult might 45 regard as yelling and screaming, or two people might have different views about the same act; you accept that?
[Mr Leventis]      I accept that.
Mr GlickRight. So when someone wants to challenge the children’s reality, if they say, “Mum yelled at me,” it might be a whisper to some?
[Mr Leventis]      Yes.
The father was cross-examined at length about the events of the Mother’s Day 2023, when the father recorded a lengthy conversation involving the father, the eldest daughter’s aunt and the eldest daughter immediately following an interview between the eldest daughter and Ms Z. Before descending to the minutiae of the cross-examination about that recorded conversation, Mr Glick KC extracted from the father a concession that the discussions immediately following the interview between the eldest child and Ms Z did not positively foster any relationship between mother and daughter. The father gave[21] the following evidence –
[21] T 57 L 17 – T 58 L 5.
Mr GlickDo you accept – and I want to draw an inference from conduct – that after [Ms Z’s] discussion with your daughter [X], you accepted that your conduct was, I think, disgraceful?
[Mr Leventis]      Some of the words that I used should not have been used, but I was very upset at that time.
Mr GlickYou were upset. What were you upset about?
[Mr Leventis]      Because [Ms Z] – I got the children to [Ms Z] on the basis that she said she wasn’t going to try and force things on that day.
Mr GlickHow did you know she forced things?
[Mr Leventis]      Because [X] came out, and the first thing she said – she kept telling me, “I have to see Mum. I have to see Mum right now” - - -
Mr GlickJust one second?
[Mr Leventis]       - - - as in have a meeting with her.
Mr GlickI don’t want to go back into the old material. Do you accept that if you look at that transcript of what you said to your daughter [X], you did not positively foster the relationship between mother and daughter?
[Mr Leventis]      On that day, I didn’t. I was extremely – you’ve – you’ve got to take it in the context of what had been happening for years - - -
Mr GlickYou see, [Mr Leventis] - - -?
[Mr Leventis]      - - - and what happened on that day.
Mr Glick[Mr Leventis], you are – you’ve got a [degree]. You understand what a question is. You understand what an answer is. You do not use my questions to make a speech. I’ve asked you a specific question and I just want a yes and no answer, if it’s capable of yes and no. On that day, in that recording, you accept, do you not, that you did not – sorry, that your words, questions and conduct was destructive of the relationship between mother and daughter?
[Mr Leventis]      I – I acknowledge it was not helpful on that day.
Mr GlickWas destructive of the relationship?
[Mr Leventis]      I mean, that’s your – I – I wouldn’t – you’re – you’re making an inference. I – I guess it wasn’t helpful.
Mr GlickAnd the conduct of your sister in-law was equally destructive of the relationship between mother and daughter?
[Mr Leventis]      Yes.
When the father stated that the conversation was not helpful, that was an understatement of mammoth proportions. As with the conduct between the children’s aunt being destructive of the relationship between father and daughter (a matter conceded by the father) apropos the father, the conduct was likewise destructive of the relationship between the mother and the daughter. To say “it was not helpful” was absurd. It was unquestionably destructive. The fact that the father could not see that speaks volumes, in my view.
An issue arose about the fidelity of the father’s transcript with the actual words used. The father gave evidence that he typed the words that appeared on the transcript from his own recording. He agreed that the transcription was not accurate. He said that for one hour worth of recording, he spent between six and seven hours transcribing what had been recorded. The father gave evidence that he recorded the events of Mother’s Day on a telephone. He conceded[22] that it was not appropriate for him to record the discussions. He also conceded[23] that he did not disclose that the events were being recorded. The father gave evidence that every single word of the transcript was checked against the recording after it was typed.[24] One of the persons in the car with the father asked whether “daddy” (that was the word used) was recording this to which the father gave evidence that he did not answer the enquirer.[25]
[22] T 70 L 22.
[23] T 72 L 10.
[24] T 75 L 20.
[25] T 76 L 15.
Counsel for the mother placed substantial reliance upon the actual words used by the father, the aunt and the eldest child during that episode on Mother’s Day. In final address, Mr Glick KC contended that the manner in which the father behaved and the words he said revealed that he had very little insight into proper parenting, that he influenced the children’s views (or one or other of them) about the mother, that he wrongly discussed aspects of this litigation with the children (or one or other of them), that he undermined the role of Ms Z and that the father made no genuine endeavour to procure the children’s engagement with the mother. The transcript of the Mother’s Day discussion went into evidence. The precise terms of the exchange – while lengthy – is set out below in the schedule to these reasons.
The father gave evidence that he was not happy with the manner in which the eldest daughter spoke to the mother.[26] Mr Glick KC was there putting to the father that when the eldest daughter said she (the eldest daughter) could have kicked her own mother in the face, the daughter was being impertinent. The father did not know what that word meant. Yet the father conceded that he did not regard the daughter’s manner of referring to her mother as being polite. The father answered, to my mind with clinical detachment, “It’s not ideal. No.”. To respond by stating that the daughter’s expression “I could have kicked (the mother) in the face” was not ideal revealed to me that the father had lost perspective in his parenting obligations, at least insofar as he as well as the children should have demonstrated a degree of respect and politeness towards the mother. By failing to condemn the daughter’s use of language “I could have kicked (the mother) in the face”, the father acquiesced in the display of an appallingly poor attitude towards the mother (a matter relevant under one of the subsections of s 60CC(3) of the Family Law Act) as well as an equally appallingly poor attitude towards his obligations and responsibilities of parenting (another of the subsections of s 60CC (3)). I find it difficult to accept that the father exerted such little beneficial influence over the children that he was unable to control such impoliteness by the eldest daughter. Equally, I find it difficult to accept that it was a proper discharge of his obligations toward the children that he sat in the car for 30 minutes[27] repeatedly uttering the words “just go” to the children before they actually got out of the car. As a parent, he was required to lead. Instead, he seemed to insinuate himself into the thought processes of the children by accepting their repeated negative attitudes towards the mother. There is considerable force in the submissions advanced by counsel for the mother that the father made no meaningful endeavour to ensure that the children actually got out of the car to see their mother on Mother’s Day. An inference was reasonably open[28] that they got out of the car as a matter of choice, for reasons unconnected to the father, so as to talk to the maternal grandfather. So far as the legitimacy of recording the exchange on Mother’s Day was concerned, on one view such a recording was or may have been illegal as was canvassed by me in Gin v Hing.[29] The point was not exhaustively debated before me and in any event, in accordance with Deputy Commissioner of Taxation v Shi[30] I granted the relevant certificate in favour of the father.
[26] T 81.
[27] T 80 L 38.
[28] Holloway v McFeeters (1956) 94 CLR 470.
[29] (2019) 63 Fam LR 258.
[30] (2021) 273 CLR 235.
Returning to the cross-examination of the father, the father gave evidence that he was told by the eldest daughter that Ms Z had laughed at the daughter’s claims and accused the daughter of lying.[31] The father gave evidence that he did not accept Ms Z’s construction. The father admitted that Ms Z’s reports contained no accusation that the daughter had lied. He said he read Ms Z’s observation that the eldest daughter exaggerated or changed her story or exaggerated matters yet the father gave evidence that he did not accept such an observation as having been made by Ms Z. The father gave evidence about Ms Z that “she deliberately left details out” (his words).[32] He later altered his evidence by deleting reference to Ms Z deliberately lying which he watered down to stating that Ms Z’s report “was not accurate” (again, his words). He then added the following –
“Okay. I don’t – not deliberately, but it was not ideal.”[33]
[31] T 82 L 24-34.
[32] T 82 L 42.
[33] That was another use of his phrase “not ideal” the import of which was extremely difficult to understand especially in the present context where with only the slightest challenge to his assertion that Ms Z had deliberately lied did he say that her report was “not accurate” to which he added the meaningless supererogation that “it” (although he did not say what “was not ideal”. At times I found his thought processes were scrambled.
The father said he was upset that his daughter had reported to him that the family consultant had accused the daughter of lying. Yet in a matter of seconds after giving that evidence the father conceded that Ms Z had not in fact reported that the eldest daughter had lied. The father attempted to slough off the falsity of his evidence that Ms Z had lied by asserting in the witness box –
(a)“it’s very emotional, that’s all”;[34]
(b)he took his daughter’s side and adamantly accepted what the daughter said about what Ms Z allegedly said “because they’ve been crying to me for many, many years”;[35] and
(c)“I don’t think (the eldest daughter) would lie on those matters.”[36]
[34] T 84 L 30.
[35] T 85 L 7.
[36] T 85 L 17.
In final addresses, Mr Glick KC submitted that the father’s parenting insight was impaired, because among other reasons, he unreservedly accepted what the children told him without his independently verifying the accuracy of what they told him. Whether the father regarded this epoch in his life as being an emotional time, whether his children had in fact been crying to him for many years and whether he thought (howsoever irrationally) that his eldest daughter would not lie to him was largely beside the point when it came to his giving truthful evidence. Having observed the father giving evidence for some time in the witness box I enjoyed the distinct advantages of which the Court of Appeal of the Supreme Court of New South Wales spoke in Galea v Galea,[37] especially hearing not only what the witness said but observing the manner in which the witness gives his or her evidence. I formed the view that the father was significantly less than frank and open when giving his evidence. In my view he was evasive in what he said. Only when pressed to a point that he had no choice did he concede matters that ought properly to have been conceded. He was repeatedly told by me that he must not argue with the cross-examiner and that he was required to answer the questions. He struck me as a person utterly driven to telling his version of events, howsoever non-responsive that may have been to the questions asked. It was readily apparent that he regarded Ms Z with disdain, attempting to impeach her professional integrity by describing her as biased. That was an unfounded and disgraceful statement to make, in the presence of others with whom he should not have been discussing the details of this litigation. The father seemed unwilling or unable to proceed in a manner that did not involve the unquestioning acceptance of anything his children said to him, whether about the mother or about Ms Z. He did not filter fact from fiction when statements allegedly made by his children were concerned.
[37] (1990) 19 NSWLR 263.

Mr Glick specifically put to the father that the eldest daughter’s statement about wanting to kick the mother in the face revealed the daughter’s mindset of wanting to tell the father what he wanted to hear. The father did not accept that. He denied that in making that comment about wanting to kick the mother in the face that the daughter was playing up to the father who had denigrated the mother. To my way of thinking, the father’s denial of those propositions represented the father’s refusal to admit the self-evident truth which in turn indicated to me that he may not behave in a child-focused manner when the children are in his care henceforth. Further, to the extent that ongoing disputation may continue between the children and the mother, I hold very real reservations that the father will diligently discharge his duties as a parent by properly extricating himself from his disdain for the mother when directing his children to do acts that promote a positive relationship between the children and the mother. In reference to the events on Mother’s Day the father volunteered that he was “desperate to get (the children) out of the car”. The reverse was true. The father’s conduct revealed he was very far from desperate to get the children out of the car. He repeated a mantra for them to “just go”. He said that to the children over and over for up to 30 minutes. The children did not go. He chose to adopt no other tact than to repeatedly tell the children to go. They did not go. Yet he kept telling them to go and they continued to do nothing. That scenario was the antithesis of desperation. So when the father asserted that he was desperate for the children to get out of the car, that was false. It was a gross embellishment of the truth. The father was not a reliable witness, in my judgment.
The father was cross-examined about the mother’s proposal for the children to live with the mother for six months. He said he was opposed to the concept, asserting that he believed the proposal will backfire, that the children will run away and that it will cause resentment. The father stated that if family therapy were ordered and the children did not attend, in the way they refused to attend Dr O, the father did not know what might thereafter happen.[38] He said supervised time as between the mother and the children was more likely to ensure attendance by the children.
[38] T 99 L 46.
The father was adamant that in his view the mother’s proposals “would be dangerous” (his words), “it would be extremely confronting” (his words), “I can’t see it working” (his words), “I think it’s dangerous. I think it’s actually dangerous” (his words), and “mental health, physical health…they will run away” (his words). The father roundly condemned the mother’s proposals but offered no more satisfactory proposal. He proposed for the children to live with him. He said he as a layman prepared the orders he sought in this case.
The father said he favoured family therapy. The magic about therapy,[39] he said, was that the children will be less likely to argue with the therapist than they would be with him.
[39] Transcript 7 February 2024 T 101 L 12.
On the second day of his cross-examination by Mr Glick KC, the father was questioned about a referral from a general practitioner in relation to the youngest child having a developmental condition. The father gave evidence that he had not seen the general practitioner’s referral. However, the father accepted that Dr KK had been working with the youngest daughter for anxiety, shyness and her developmental condition. Dr KK, the evidence revealed, was a clinical psychologist.
In the course of his cross-examination of the father, under the rubric of a fair warning given to the father, Mr Glick KC informed the father that in due course he would submit to me that the father was not to be trusted in his evidence. Mr Glick said this –[40]
Mr GlickYou are evasive and this reflects in the treatment of your daughter the relationship with her mother that you cannot be trusted. I’m going to put to his Honour that you cannot be trusted, and you’re slippery on everything you say, and it’s calculated. So you are slippery, I am going to put to his Honour, and I don’t want you to slip out of this. Look at the letter.
[40] Transcript 8 February 2024 T 6 L 15 – 19.
That was the preamble to a collection of questions about whether the father’s assertions were true when he stated that the mother waited from May to September 2023 before resuming the part heard application for parenting orders.[41] Mr Glick KC put to the father that in July 2023 the father became unrepresented (with which the father agreed) and that subsequently the mother’s solicitors wrote to the father requiring a response to their proposed minute of orders by 1 August failing which they would ask for the proceeding to be re-listed. The father did not agree to the orders proposed by the mother. He refused to sign the minute put forward by the mother’s solicitors.[42] He agreed he criticised the mother for delaying in bringing this application in circumstances where, had he signed the order sought, the case would have returned to court many months prior to the last payment due under terms of settlement.[43] He also agreed he could not in those circumstances maintain his assertion that the mother was prioritising money over the children.[44] As it happened, the orders the father refused to sign incorporated a consent order listing the case on a date to be fixed for final submissions and for the filing of affidavits and written submissions. Those orders were tolerably straightforward even for an unrepresented lay party. But the father’s refusal to agree to those seemingly uncontroversial orders was grounded, so he said,[45] in his requirement that he needed a chance to file an affidavit in reply and, when the proposed orders provided for further affidavit evidence being filed concurrently, he had no opportunity to file an affidavit in reply.
[41] The father made that assertion in paragraph 11 of his affidavit sworn 31 August 2022.
[42] T 12 L 29.
[43] T 12 L 31-55.
[44] T 12 L 35.
[45] T 17 L 29.
Ultimately, the father withdrew the assertion made in paragraph 11 of his affidavit sworn 31 August 2023.
That lamentably laboured recital of the chronological sequence of events on a very discrete point served to point up several things that call for mention now. First, I found the father to have been a highly combative witness. He fought with Mr Glick KC on very many occasions in reference to answering direct and easy-to-follow questions. The father was evasive in his approach to answering questions. On numerous occasions he had to be directed to answer the question asked rather than to make a speech he thought most advantageous to his case. Next, he was willing to include information in his 31 August affidavit such as that in paragraph 11 when he was wrong. Next, he only conceded the error of paragraph 11 when a hard-fought series of questions in cross-examination drew him inexorably to the conclusion that he was wrong.
The father persisted in his seemingly unshakable position that unless the mother undertakes therapy, the children are unsafe in her care.[46] While more a submission, Mr Glick KC put to the father that the father’s counsel (when the father was represented) did not put any such proposition to the mother.
[46] T 20 L 20.
When asked whether the father regarded it as good parenting for the father and his sister-in-law to humiliate the family consultant, Ms Z, the father said he was extremely upset and he regretted what he said.[47]
[47] T 21 L 25.
The father said he felt unsafe in the presence of the mother.[48] That piqued my curiosity. It provoked a collection of questions by me, recorded[49] in the following exchange –
[48] T 21 L 46.
[49] T 22 L 31 - T 23 L 24.
His Honour Just before we leave this subject, you say you fear – you have felt or you do feel or you might feel – I forget which verb you used, but you say you are unsafe in the presence of the mother. What – how does that safety or unsafety manifest itself? Is it psychological? Do you shake? Do you convulse? What are the manifestations of your sense of unsafety?
[Mr Leventis]      I get quite anxious and I’ve asked [Ms Leventis] in the past not to come - - -
His HonourHang on. Just – don’t move off this. You personally feel anxious, but is that observable to someone or do you articulate it or is this completely internalised by you, because – the reason I’m asking is a sense of safety is, in large measure, entirely subjective. So how is a person meant to understand what your sense of safety is unless articulated?
[Mr Leventis]      I had written to [Ms Leventis] earlier saying that I don’t feel comfortable when she’s there and – near me.
His HonourYes, I know, but that means different things to different people. It might be irrational. It might be based on objectively maintainable events. For example, if there’s a marauding tribe coming towards you, and you say, “I don’t feel safe”, well, most people would agree that’s a threat to your safety, but if it’s not articulated, and if it’s not borne out by objective circumstances, how are we to measure the reasonableness or otherwise of your sensation of feeling unsafe?
[Mr Leventis]      I guess you can’t. I mean, I also don’t show it. I don’t - - -
His HonourYou - - -?
[Mr Leventis]:     - - - want to show – I don’t want to show that I’m anxious.
His Honour:        So you didn’t – you – all you did is say, “I feel unsafe”, but you didn’t show it; is that it?
[Mr Leventis]:     I mean, I don’t know – how do I show it? I don’t run. I don’t shake. I - - -
His Honour:        But you’ve said before that you have felt unsafe, and I’m trying to understand how that manifested itself. It – did it go beyond an unspoken, internal sensation on your part?
[Mr Leventis]:     No.
His Honour:        In other words, it was limited to that; is that right?
[Mr Leventis]:     Yes, I – I fear that false allegations are going to be made against me. So I – I feel quite uncomfortable in that situation.
His Honour:        Yes, yes, yes. But I’m trying to separate and get you to explain, if you could, the difference between an unexpressed, internal sensation as opposed to something else. So are you confining your sense of want of safety to merely an internal sensation that’s unexpressed and unobservable?
[Mr Leventis]:     Yes.
His Honour:        I see. Thank you. Thank you for explaining that.
The father admitted that he had not discussed with the children the mother’s proposal in her orders. He also admitted that insofar as his evidence included the expression of his concerns about the children’s mental health if the mother’s proposed orders were implemented, he is not an expert.
So far as the father’s preparedness to accept the say-so of the mother on any issue where her version was at odds with the children’s version on the same issue, the father said he believed the children. The exchange[50] was as follows –
Mr Glick Answer my question. Or maybe that is an answer. The answer is you don’t take them to a counsellor but you say to the mother, “You change your conduct”. Not to the children. You don’t say to the children, “You should change. You, my children, should change your conduct”. You say to the mother, “You change the conduct”. That’s your answer, isn’t it?
[Mr Leventis] I believe the children.
Mr GlickYes.
His HonourWell, sorry, would you mind explaining that? That’s one of the things I have to put into the mix. Does that mean – let me just see if I understand it. Does that mean that to the extent that your children say one thing to you, which is in contradiction to the same thing as told by the mother, you will prefer what the children say over the mother’s version; is that right? It’s a yes/no answer?
[Mr Leventis] I – yes, yes.
[50] T 31 L 36 – T 32 L 2.
It will be recalled that the father made much ado of his state of upset upon learning from the eldest daughter, so it was said, that Ms Z called the eldest daughter a liar. After the recorded portion of the Mother’s Day interaction was played in open court with the father listening to it, the father admitted the word “liar” was not used. The father told me several times he regretted what he said on that day.
Several things must be said about the father’s concession that the eldest daughter did not in fact say that Ms Z called the eldest daughter a liar. First, the father only conceded that the eldest daughter did not in fact say that Ms Z called the eldest daughter a liar once the recording was played to the father several times.[51] Until that concession, he advanced a position in this litigation to the effect that he was emotionally upset because the family consultant called the eldest daughter a liar. That was false. Next, the father himself said that in any situation where the information as given to him by the children was in conflict with the information as given by the mother on the same point, the father will prefer the evidence of his children. In the specific context of the father believing his eldest daughter saying to him that Ms Z had called the eldest daughter a liar, it was readily apparent that the father had mistakenly preferred his daughter’s version of events. The words she asserted as being said by Ms Z were in fact not said. Having regard to the pitch of the battle that was generated on the strength of the impugned words being in fact said when they were not, the father’s unwavering acceptance of all his daughter told him showed that his parenting capacity was seriously impaired. It revealed to me an approach the father may very well adopt in the future where he unreservedly accepts the say-so of one of his children, and he bases his latter conduct on his unreserved acceptance on whatever the child tells him. Even if the information given to him by the child is wrong, he expresses his regret but no more. His insight as a parent was severely diminished.
[51] T 40.
When pressed forcefully by Mr Glick KC, the father said he (the father) had suffered an injury about which the father did not know whether such an injury affected his ability to answer questions as he had not been tested.[52] No medical evidence was led in this case about the father being impaired in his ability to answer questions.
[52] T 47.
The father went to considerable lengths to explain why in his view his conduct may have contributed to alienation but alienation “wasn’t what I was aiming to do” (his words).[53] Whether he was aiming to achieve the end result of alienation was largely beside the point because by his answer that his conduct contributed to alienation, he conceded that he engaged in conduct amounting to alienation. In my view, there is considerable force in the submission by Mr Glick KC that the father is bereft of insight into parenting matters. Even when he reluctantly conceded acts as “contributing” to alienation, he endeavoured to slough off the seriousness of the matter by asserting that he did not aim to achieve that outcome. Causing or contributing to acts constituting alienation amount to being involved in whole or in part in the process of alienation. That is wholly antithetical to good parenting. The best interest of the children are not served by permitting ongoing acts of or acts which contribute to alienation. Of significance was the father’s admission that he was ashamed of what he said in the car on Mother’s Day.[54] He also admitted that he regarded his conduct on that day as being deplorable.[55] He accepted the Family Law Act requires that notwithstanding his personal feelings the father must act in a manner that protects the children from psychological harm. Yet in a matter of seconds thereafter the father qualified his answer in a significant manner. Even after accepting that the father is required to act like a parent despite his personal feeling, the father added that the daughter’s right to have a relationship with her mother is subject to the father’s view about whether that relationship is safe.[56] He gave evidence that in the absence of therapy and supervision, the father considered that the mother was and remains a serious risk to the children.[57] The father volunteered his views that the mother has no insight into the psychological aspects of her interaction with the children.[58] Curiously, while levelling that accusation against the mother the father admitted that at no time during the life of the litigation in this case has he ever made any enquiry about the scope of his obligations under the Family Law Act.[59]
[53] T 55 L 32.
[54] T 56.
[55] T 56.
[56] T 59 L 5.
[57] T 59 L 17.
[58] T 60 L 47.
[59] T 62 L 30.
Quite frankly, the father’s answer about his view on the safety of the children’s relationship with the mother caused me pause. While I accept that one of the primary considerations under s 60CC(2) of the Family Law Act is the need to protect the child from the risk of family violence or of harm including the risk of psychological harm and I also accept that “family violence” is a broad term defined deliberately broadly under the Family Law Act, I have very grave reservations that the father’s construct of safety, as he describes it, is balanced, rational or maintainable especially where the father is of the view that there is a risk to the children’s safety imposed by the mother. He unashamedly deposed to believing the substantive part of everything the children tell him.[60] Having admitted that the events on Mother’s Day as were recorded by the father should never have occurred,[61] the father was asked whether in his view he should have apologised to the eldest daughter for what was said in the car, to which he said he should have but had not done so.[62] He was asked whether he should have told the eldest daughter the mother was not an abuser, that the children were better off with two parents, that it was not correct for the children to take the view that the mother was an abuser and that the children were not better off with a single father. The father’s answer revealed a real curiosity to me. He said the following –
“So again you’re asking me whether I should have doubted her reality that she told me. So – although I shouldn’t have used the language, it becomes a conflict if I go to them and say ‘you’re lying’”.
[60] T 62 L 46 & 47.
[61] T 64 L 44.
[62] T 65 L 14 -16.
That response indicated to me that the father was unwilling to interfere in the lives of his daughters if such interference involved “doubting her reality”. That seemed to me to amount to a concession that he would not cause his daughters to rethink any issue they believed to be true, no matter how erroneous or wrongheaded. In other words, it seemed to me that he was there saying by other words that he would permit his daughters to hold their views – whether based in fact or in fiction – and that any challenge to those views represented calling his daughters liars. The absurdity of that position need only be stated for its impact to be appreciated. The children are still a perceptible distance from obtaining their majority. They are teenagers whose views are likely to shift many times on many issues before each reaches 18 years of age. Each may presently hold views that are not objectively maintainable. Effective, competent parenting includes the ability to enlighten the child about the wisdom or otherwise of holding onto views that are wrongheaded. On the scenario just described, the father has said by other words that any challenge to the children’s reality (that is to say, their views) is akin to calling the children liars. I reject out of hand that a parent’s correction of his or her child’s unfounded views, opinions or beliefs is akin to calling the child a liar. To say otherwise is to approach parenting with a view of the unreserved acceptance of the correctness of all the child says, does or thinks. Experience shows that the opposite is likely to amount to effective parenting that promotes the statutory purposes enshrined in the Family Law Act.

[Mr Leventis]               Did you say bye, did you?
[X] I just want to go
[Mr Leventis]               […] was nice to you wasn’t he?
[X] Yes, […] was good. That’s why I want to see […], and […] and […] again. I just want to go
[Mr Leventis]               Just open your window for a sec. can we organise for them to see […] and […]?
[X] And […]
[Ms Leventis]               Yeah, you want to see them now or another
[X] Another day
[Mr Leventis]               Another day, can we organise another day?
[Ms Leventis]               Alright, Yep. Of course they’re dyeing to see you
[X] But just them, nobody else can be there
[Ms Leventis]               No, (inaudible due to phone vibrations), on their own?
[X] yeah, with […]
[Ms Leventis]               yep, but that’s not go anything to do with us. Ok
[X] Ok, but I only want to build a relationship with them
[Ms Leventis]               Well, you need to build a relationship with me too
[X] I don’t really want to because I tried, I tried, and I tried and I tried and I tried and I told you and I told you and you didn’t do anything, you didn’t change
[Ms Leventis]               X, a lot of things have been going on and it’s interfered with our relationship. Let’s just build a new relationship and move on
1 hour 10 mins
[X] No, It’s a big thing, thing to move on from
[Ms Leventis]               Well, if you want to talk about things I’m happy to do that too
[X] No
[Ms Leventis]               Or we can just move on
[X] No
[Ms Leventis]               I think about you all the time, I think about what you’re doing. I think about how […] is for [Y], other than [X] I think about your camp and your job thing and your ears pierced. Did you get my letters?
[X] Yep
[Ms Leventis]               What else? What else have I missed. So many things. Can I see your ears, I can see [Y’s]. That looks really good, very nice.
[X] Ok can we go now? Dad can you please leave, I don’t to be here any more
[Mr Leventis]               But why?
[X] Because I don’t want to be here any more, I don’t want to talk to anyone.
[Mr Leventis]               It’s not harmful, like, right now, you can chat.
[X] Yes it is, I’m getting angry, I don’t feel, I feel uncomfortable and I don’t want to be here. It is harmful, to mental health
[Ms Leventis]               We’re trying to help your mental health
[X] Ok, but this isn’t helping
[Ms Leventis]               To end your relationship with your mum is really, really bad for your mental health. We’re trying to help you with your mental health.
[Y] Well it hasn’t been bad for the past year
[Ms Leventis]               It’s not just for me, it’s for you too and for me
[X] Ok, but lately, I’ve been really happy
[Ms Leventis]               Pardon, I can’t hear you.
[X] I’ve been really happy and then every time I get contacted by you my mood drops because I don’t want that anymore.
[Ms Leventis]               Ok, we need to sort that out
[X] The way to sort that out is to stop it, just stop, stop
[Ms Leventis]               trust me, that’s not going to be good for you in the long run. It’s not gonna help you.
[X]Just stop, ok, stop (winds window). Just go, I can’t sit here any more. I can’t sit here any more, I can not sit here
[Y]Can please we go now Dad?
[X] Seriously, can we just go? I did it, I sat there, I talked to him and it was fine apart from how he kept doing that and I just want to go now. I just want to go now
[Mr Leventis]               Don’t you want to go and play with the baby?
[X] No
[Y] We just did
[Mr Leventis]               Was the baby cute
[X] It smiles so much
[Mr Leventis]               Smells?
[X] Smiles
[Mr Leventis]               ah, smiles
[X] Doesn’t cry
[Mr Leventis]               I thought you said smells
[X] It doesn’t cry at all, just so happy
[Mr Leventis]               Hm
[X] She’s really cute, she has, she looks the same as […].
[Mr Leventis]               Uh hm
[Y] She only has two teeth.
1 hour 14 mins (window winds)
[X] Please stop it, I don’t want to talk to her.
[Mr Leventis]               Was the garden nice?
[X] Yeah, [Y’s] apple tree, we went out to look at it
[Mr Leventis]               eh hm
[X] It’s literally up to me
[Mr Leventis]               It started from a seedling?
[X]from [Y’s] apple
[Mr Leventis]               hm hm, the other trees are nice?
[X] The apricot tree has gone nuts, it’s gone huge
[Mr Leventis]               That’s good
[Y] But the birds ate them all
[X] Yeah
[Y] Because the net is on the inside of the tree now
[Mr Leventis]               Ah, that’s nice did you try and eat one?
[X] No, there is none and the birds have all eaten and there’s like got fungi
[Mr Leventis]               Did you look?
[Y]Can we please go now?
[X] Um, I’ve done enough, I’ve done enough today, I’m bored now, I want to go
[Mr Leventis]               You’re bored?
[X] Well not bored, annoyed, I just want to go
(Window winds)
[X] Like, I did what you asked, I literally went to talk to Grandma, Grandpa and […] and […]
[Ms Leventis]               Right you don’t have to see them again, I want to have a chat
[X] I don’t want to have a chat with you, that’s enough for today, that’s enough for ever. I’ll talk to other people, not you.
[Ms Leventis                I’m worried that you say that and next time you won’t do it either
[X] Ok, well I’ll only talk to […], […] and […] and like I
[Ms Leventis]               We can arrange for you to meet them somewhere else so there will be nobody else there
[X] Ok, that’s it
[Mr Leventis]               Don’t you want to see Grandpa again?
[X] Yes, but by himself and he can’t, he can’t keep telling me that I have to go and that I’m making it up
[Ms Leventis]               Were just finding it really
[X] I just want to have a normal conversation with them, like you said, were not going to discuss it. I’m not discussing it with anybody and
[Ms Leventis]               That’s fine
[X] I’ll just talk to Grandma I mean Grandpa, […], […] and […] because I do not trust Grandma to be able to do that
[Ms Leventis]               Well I can explain to her that you just want to move on and not talk about the past
[X]No, it’s like no, I don’t, I don’t
[Ms Leventis]               I’m not asking you to see Grandma now
[X] I don’t want to see [Ms MM] either
[Ms Leventis]               Fine
[X] Just […], […] […] and Grandpa, that’s it
[Ms Leventis]               Ok
[X] Ok
[Ms Leventis]               But I want to still talk to you for a while
[X] No. And I’m not seeing them every week I’ll see them sometimes. I’m not going to talk with you for a while so you can stop asking for it. Stop opening my window, I don’t want to talk to her, I just want to go I just want to go
(windows winding)
[Mr Leventis]               I locked it
[Ms Leventis]               Why don’t you just come one at a time?
[Y] No
[Ms Leventis]               For 5 minutes
[Y] I’m not coming with you
[X]No and, and you can’t even ask me for that because I definitely need somebody else there. I would definitely need somebody else there for starters and I’m not doing that anyway. I’m not doing that anyway
[Ms Leventis]               How is soccer [Y]?
[X]Just go Dad, I just want to go, I just want to go.
1 hour 19 minutes
[X]I just want go, I don’t want to waste all my time here
[Ms Leventis]               I saw you’ve been winning by lots and they might put you up into the next level huh?
[X] there’s no levels above, she drawed (sic) today
[Ms Leventis]               Is […] in there, why is she so quiet. Hello […]. Can’t believe she’s so quiet
(window winds)
[X] I just want to go, can we just go. I literally had a conversation with her, it’s enough now. Let’s go
[Mr Leventis]               How did you close yours?
[X] You can’t child lock it, it’s a front one
[Mr Leventis]               What about if you go and speak to […] and […] so you can finish on a good note?
[X]No, because, if I go and talk to […] and […] she is going to come back. She’s….
[Mr Leventis]               I just, I’ll just suggest it to them
[X] She is going to come back and say I have to talk to her
[Mr Leventis]               I just suggested to them to go back over and speak to […] and […]
[Ms Leventis]               What?
[Mr Leventis]               I just suggested they go over to […] and […] so they can finish on a positive
[X] No, because she is going to keep coming out and saying, you are going to come and say
[Mr Leventis]               Come on [X]
[X] I have to have a conversation with you, I have to have a conversation with you, I have to have a conversation with you I just want to go. I just want to go
[Mr Leventis]               I’m not sure
[Ms Leventis]               Come and have a five-minute conversation
[X] I just want to go
[Ms Leventis]               Well, it’s about what’s best for you. It’s not about what you want, ok.
[X] What’s best for me is…
[Ms Leventis]               Yes
[X] …is that I leave right now
[Ms Leventis]               Well you’re not actually old enough to, be your own parent. So you need to listen
[Y] We are old enough to be our own person
[X]I’m old enough to know what I want and to be my own person
[Ms Leventis]               You can be your own person but you need parents to guide you
[X] Yeah, but I know what I want already
[Ms Leventis]               Well you need parents (background noise, inaudible)
[X] Ok, well
[Ms Leventis]               three-year-olds know what they want, they want eat chocolate day every day
[X] Well I’m obviously way more mature, that’s not a good, that’s not a good
[Ms Leventis]               Of course your more mature than a three year old. I’m just saying that you still need some guidance, you need a different type of guidance
[X] I can go to my school and I can get guidance from my teacher
[Ms Leventis]               No, you need guidance from your parents, it’s a different thing
[X] No.
1 hour 22 minutes
[X] You can stand there for as long as you want. I’m not going to get out of the car and have a conversation with you.
[Ms Leventis]               Well you can’t leave either, so
[X] Well I can, I do have a pair of legs
[Ms Leventis]               You do have what
[X] I have legs, I will walk
[Ms Leventis]               And what’s going to happen when no-one comes to pick you up
[X] I’ll go to the police station
[Mr Leventis]               It’s not very helpful [X]
[X] Well I’m not having a conversation with her and that’s not happening.
[Mr Leventis]               Aren’t you glad you came and visited Grandpa. Isn’t that a good thing?
[X] Yes. Nothing really came from it apart from him telling me I have to go back inside and that I’m making it up. So. No. The only people that didn’t do that was […] and actually, just […] and […].
[Ms Leventis]               We can have a chat, I’ll send Grandpa inside
[Y]I’m not going anywhere
[Ms Leventis]               Just sit on the front step here
[Y]No
[Ms Leventis]               Dad will still be here
[Y]I’m not going anywhere
[Mr Leventis]               Go and have a 5 minute chat
[X]If it’s that important you can do it right here
[Ms Leventis]               Hey
[Mr Leventis]               You can go and have a 5 minute chat
[X] No, I do not feel comfortable doing that
[Mr Leventis]               What’s going to happen, I’m still here
[X] I don’t care
1 hour 25 min
[X] Please can we just go, I’ve done enough now, I’m sick of this Like , I’m not going to do anything else. I’ve done what I want to do, that’s it, I’m not changing my mind. I’ve done wat I want to do, that’s it. Let’s go, like you standing there, that’s not going to change anything
[Ms Leventis]               I know that that’s what you think that you want but that’s not going to help you
[X] You know what’s actually not helping me?
[Ms Leventis]               Doing what you want all the time won’t help you.
[X] Do you know what’s not helping me right now, talking to you and having to be here where I feel so uncomfortable I like, this is not helping me [Ms Leventis] Well, we need to take the first steps
[X] Ok…
[Ms Leventis]               I’m not really enjoying you speaking to me like that either
[X] …I haven’t been enjoying it for how many years! Let me go home.
[X] You’re not intimidating me
[Ms Leventis]               I’m not trying to intimidate you.
[X] Ok
[Ms Leventis]               I think you could be trying to intimidate me
[X] Ok
[Ms Leventis]               Do you want to sit in the chairs at the front of [Ms MM’s] house?
[X] No
[Ms Leventis]               Dad will be here still
[X] You keep saying that like that’s going to make a difference
[Ms Leventis]               Well you can’t leave, so, why don’t you just come and do it?
[X] No, I’m, no, I would rather sit here all day and all night than do that
1 hour 28 min 30
[X] Please Dad, seriously, I just want to go home. This is making me really annoyed and upset. I just want to go. I just want to go
[Mr Leventis]               You can just go and have a five-minute chat
[X No], I’m not having a five minute chat
[Mr Leventis]               I won’t leave, I’ll be here
[X]That doesn’t make a difference! Come on I just want to go, I want to go to the […].
1 hour 30 min
[X] I just want to go, I just want to go the […] like you said. Seriously
[Mr Leventis]               Yeah, we’ll go there as well
[X] We can’t. The only reason I agreed to go with Grandpa just then was because he’s forgetting things. That’s it. Nobody is going to get anything else from me. So let’s just go, you’re wasting my time. I could be spending this with my cousins
[Mr Leventis]               But your cousin is here as well
[X] It’s like
[Mr Leventis]               He just came back
[X] No it was only […] that left. He’s like 20 something anyway.
(Window winds)
[X] and then even though I said […] can’t join, he joined. So now I’m even more mad
[Mr Leventis]               He joined?
[X] Yeah, it was supposed to be just us and Grandpa, […] just like snuck up
[Mr Leventis]               But that’s ok isn’t it?
[X] It was fine because […] was the only person, even […] tried to make us go there
[Mr Leventis]               ah really, what do you mean, like go
[X] She’s just like she’s fine, she’s not doing any of the things
[Mr Leventis]               Ok, but she promised that. Ok
[X] They were all doing it
[Mr Leventis                That’s fine [X], they’re just trying to help you get to speak to your mum again
[X] It’s not fine, I’m never, I’m not going to speak to her again. It’s not fine, they promised they wouldn’t do that.
[Y] Back in your box (to dog), in your box, in, in your box.
1 hour 33 min
[Y] Can we go now?
[X] Ok, let’s go. They’re all going inside so we can go
[Mr Leventis]               We can’t go. I just made a suggestion to her
[X] I just want to go…..I just want to go
[Y] Can’t we go now?
[Mr Leventis]               Well go soon. We’ll go […] soon
[X] What’s the time?
[Mr Leventis]               Quarter to five
[X] There’s no time to go […] now. She wastes every moment of my life. I don’t want to talk to them either. It’s so hot in this car can we just go?
[Mr Leventis]               Maybe... will you meet […] in the front yard?
[Y] We just did
[Mr Leventis]               Hm, go on, just go and say bye to them
[X] No, because she’s there
[Mr Leventis]               Just go and say
[X] No. She’s there
[Mr Leventis]               Go and say bye, just go and say bye to them
[X] No
[Mr Leventis]               If she, if Mum goes back inside would you go?
[X] Deal
[Mr Leventis]               huh
[X] Deal
[Mr Leventis]               Deal, you’ll go out
[X] if she goes back inside I’ll say bye and then we can go.
[Mr Leventis]               Should I message her that?
[X] Yep, But I’m going after I say goodbye. We’re leaving.
1 hour 36 min 20
[X] Hey […], Hi […], Hi. Hi my girl. How are you? How are you? You don’t like it here darl. Good girls for not barking when […] is barking. Do you want to see outside […]? Whoo, she’s going to vomit. In your box
[Y]In
[X]It’s fine she can just hang out. Hi, hi […]. Your so cute my girl. Ah, back in your box. In your box, good girl. Oh, your nails are song. […] stick your nails out
(Baby crying sound)
[X] Oh no she started to cry. Right we are going to say bye and were leaving
[Mr Leventis]               Ok, (indecipherable)
[X] Oh, man look at my sweat patch, it’s so hot in this car
[Mr Leventis]               Well its stuffy because you’re closing the windows on me
1 hour, 38 min 16 sec - children exit the car
1 hour, 48 minutes 30 seconds - children return
[X] Let’s go
[Y] She was asking to go in for spaghetti, no, her spaghetti is disgusting anyway. I’m not sitting around
[X] Let’s go, let’s go, let’s go. Oh my god. Let’s go. Why is my window not shutting. Let’s go. Let’s go, let’s go. Please let’s go now.
[Mr Leventis]               Just wait
[X] Let’s go please
[Mr Leventis]               Just wait
1 hour, 50 minutes
[X] Please can we just go. Look, I sat with them, I talked with them. I'm sick of it.
[Mr Leventis]               She wants to speak with you
[X] No, I don’t want to speak with her. I just want to go. She can speak with me right here. I don’t know what the issue is
[Y] And she already did. She already spoke with us now let’s go.
[Mr Leventis]               She’ll wait there and you can talk to her through the fence
[X] No. My god the dog does not shut up. She can’t just keep me here all day
[Y] It’s already been like three hours
[X] I just want to go
1 hour, 53 minutes 15 seconds
[X] I just want to go
1 hour, 54 minutes 40 seconds
[X] What’s the time now?
[Mr Leventis]               Five o’clock
[X] Come on
[X] What the hell is that music? Hi […], Hi […]. Oh, you really want to bark at them don’t you
[X] Dad can we please go, I’m so sick of this. I just want to have a life.
[X] Can we please go, I’m sick of this. I just want to go now. I want to go to the […] as I was told as I was actually going to and now I’m really mad and I just want to leave
1 min 57
[X] Can we go, please just leave. Can I have one?
[Mr Leventis]               hm hm
[X] Here [Y]
[Y] Can I have another band aid?
[X] What did you do, what have you got a band aid for?
[Y] (inaudible)
[X] Dad, that thing stained my pants. Can you try and get it out. Can we please go?
[Mr Leventis]               Just wait
(Loud car in street)
[X] What a hoon, what are those giant sticks
[Y] What are those things?
[X] Since when were those wood things on the roof?
[Y] Since always
[X] they got their roof painted
2 hours
[X] Dad, please go now. Seriously, I just want to go. I’m sick of this.
[X] I said goodbye to […] and […]. It’s enough now, I just want to go.
2 hr 1 min 30

[Y] Can we go now?
[X] Why is this street so busy?
[Y] How is it busy?
[X] Like there is a car going by every 10 seconds
2 hour 2 mins 30
[Y] It took forty four seconds for that car to come past and one for that other car.
[X] I know, they always come in pairs don’t they? You need to say “elephant afterwards, or “Mississippi”
[Y] (counting)
[X] What the heck is that?
[Y] It’s probably just a train
[Y] (inaudible) band aid wrappings (inaudible)
[X] That took forty-nine Mississippi’s for a car to come
[Y] I don’t think I wrapped it so well because I was trying to cover it
[X] See, there is a car every minute here. Can we please go now. Seriously. Can we just go? I want to go to the […], now there is no time
[Mr Leventis]               Just wait
[Y] (inaudible)
[X](makes sound)
[Mr Leventis]               Just wait
[X] Damn it, I just dropped a Euro
[Y] Why do you have a Euro
[X]Coz they gave it to us at […]
[Y] At […]?
[X] Dad the mint is stuck in my throat
[Mr Leventis]               The what?
[X] The mint (cough)
[Mr Leventis]               Go to the boot and get her a drink [Y]
[Y] No
[X] [Y] II cannot. I got it.
[Mr Leventis]               You can fold the seat down
[X] What is that going to do?, Oh, [Y]. Go sit on that side. Open the thing, open the thing and get me a drink. No. no. Otherwise you open two, this side. Just push […]
[Y] How?
[X] You just pull, wait, how do you get it open Dad?
[Y] It opens up from the boot
[X] Dad
[Mr Leventis]               Um, isn’t there a little lever, nah it’s in the boot
[Y] Wait, no.
[X] Oh, yeah, you can open that thing. Oh you’ve got to get a screw, something to press the button, use a pen.
[Y] A button, that’s not a button, that’s a screw.
[X] Pull it, pull it. Whatever
[Y]It just (inaudible)
[X] I’ll get a water bottle, do you want one too?
(door opens)
[Y] I really need to pee. He ya […], yes. Oh its so cold
[X] Which is good that its cold, oh, that’s better. Man, now [Ms MM] is coming. God, I’m so bored of this I’m just going to go to bed. Seems like we have to stay here forever anyway.
[X] Not even going to get to see my cousins for 10 minutes now. My body hurts. (yawns)
2 hours 8 mins 30
[X] Can we please go?
[Y] Did that sound like a dog?
[X] Stop it [Y]
[Y]Can we please go now?
[X] Can we please go now?
[Mr Leventis]               Soon
[X] Soon? I don’t want to go soon, I want to go now. I have to go to the bathroom
[Y]Do you have those scissors in that red packet?
[X]What do you need? What do you need it for?
[Y]To cut my band aid shorter because it won’t stick back on my skin so I’ll cut it off
[X] What the heck is this?
[Mr Leventis]               You plug it in the car and it’s got all the different things.
[Y]Can we please go? (inaudible) Just pass me that red thing
[X] I am
[Y] Why is it taking so long?
[X] because I couldn’t find it
[Y] these scissors are really sharp and I like that they just spring back (inaudible)
[X] Can we please go?
[Y] What are we sitting here for?
[Mr Leventis]               because she said she wants to talk to you
[X] Well I’m not going to
[Y] It’s not like we’re going to get out
[Mr Leventis]               She’s just trying to make us stay here until we just want to get away so go and talk to her
[X] Seriously, she says this is good for my mental health. This is obviously not very good for my mental health.
2 hours 12 minutes 40 seconds
[X] It’s dark now, I can’t even see my cousins. It’s all my time. All my days, all my life! What’s the time?
[Mr Leventis]               Five thirty
[X] Exactly
[Mr Leventis]               hm hm
[X] It’s actually five thirty exactly?
[Mr Leventis]               Five twenty six. Don’t worry, they’re all waiting for you
[X] They’re not going to wait for us, they’ve got school tomorrow
[Y] Ok, it’s not leaking any more
[X] I need to stop at […] and get a perfume, like the four dollar ones. They smell.
[X] How dare they tell me that I’m making it all up. If you want to build a relationship with somebody that’s definitely not the first thing you say to them. You acknowledge their feelings and their truth
2 hours 15 minutes 20 seconds
[X] Can we go now?
[Mr Leventis]               Wait a sec
[X] You’ve been saying just wait for an hour. I just want to go
2 hours 16 minutes 30 seconds
[X] [Y], her phone, she got a new phone it’s like an iPhone 13 or a new Samsung, a new Samsung one. I don’t know. Look (inaudible). I need her to flip it up so I can see the cameras. I just want my stuff back and I just want to go, that’s it. That’s what I want.
2 hours 17 minutes 20 seconds
[X] oh, we’ve got to give this to […]
[Mr Leventis]               hm hm
[X] Let’s go.
[Mr Leventis]               Just wait
[X] Because it says love it should be in the shape of a love heart right. The key chain
[Mr Leventis]               It kind of is
[X] Man, it’s like a leaf, a raindrop.
[Y] Well, what was I supposed to get her? Headache curing lip balm?
[Mr Leventis]               Is that what they had.
[Y] Yes
[X] It’s like a cult I’m not joking
[Y] they had, they had shower scents to clear your head and they had
[X] You should have just got nothing and we just go her like some chocolates. It’s actually a pretty sturdy one though, it should last a long time. Just like a whole chunk of metal. The writing might rub off but it will still be there.
[Y] that’s like our waves one and we used it as a car key when we played student and teacher. You were always the teacher and I was the student/kid of you and I would pretend to be a bunch of people

“Damn with faint praise, assent with civil leer,
And, without sneering, teach the rest to sneer;
Willing to wound, and yet afraid to strike,
Just a hint a fault, and hesitate dislike…”

File number	MLC 7710 of 2018
Judgment of	WILSON J
Date of judgment	28 March 2024
Catchwords	FAMILY LAW – PARENTING – abusive behaviour by father – denigration of the mother by the father – children under the primary care of the father for nearly two years – family violence – application by mother for sole parental responsibility – orders made in accordance with the mother’s proposal.
Legislation	Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 65L, 69ZT, 102NA
Cases cited	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Banks & Patel [2024] FedCFamC1F 64 Carr v Western Australia (2007) 232 CLR 138 Commonwealth v Yarmirr (2001) 208 CLR 1 Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Eastley & Eastley [2022] FedCFamC1A 101 Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235 DPP v Le (2007) 232 CLR 562 Galea v Galea (1990) 19 NSWLR 263 Gin v Hing (2019) 63 Fam LR 258 Holloway v McFeeters (1956) 94 CLR 470 Isles v Nelissen (2022) 65 Fam LR 288 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Malec v JC Hulton Pty Ltd (1990) 169 CLR 638 Minister of Lands v Jeremias (1917) 23 CLR 322 Northern Territory v Collins (2008) 235 CLR 619 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Rice v Asplund (1978) 6 Fam LR 570 Richter v Richter (2019) 63 Fam LR 102 Roy Morgan Research Centre v Commissioner of State Revenue (2001) 207 CLR 72 Southwest Water Authority v Rumble’s [1985] AC 609 Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 Taylor v Public Service Board (NSW) (1976) 137 CLR 208 Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 Yanner v Eaton (1999) 201 CLR 351
Division	Division 1 First Instance
Number of paragraphs	183
Date of last submission	8 February 2024
Date of hearing	7 and 8 February 2024
Place	Melbourne
Counsel for the applicant	Mr Leslie Glick KC
Solicitors for the applicant	Lander & Rogers
Counsel for the respondent	Mr Cameron Allen
Solicitors for the respondent	TFA Legal

MLC 7710 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN	MS LEVENTIS Applicant
AND	MR LEVENTIS Respondent

ORDER MADE BY	WILSON J
DATE OF ORDER	28 MARCH 2024