Re Bemert
[2016] FamCA 525
•1 July 2016
FAMILY COURT OF AUSTRALIA
| RE BEMERT | [2016] FamCA 525 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where an application is made for leave to file an Application in a Case – Where the application is made by a vexatious litigant – Where the father seeks orders in relation to his daughter – Where there is neither jurisdiction nor power to make almost all the orders sought – Where the application is another attempt to pursue vexatious litigation against the daughter – Where there is currently a charge against the father for breaching an AVO for the protection of the daughter – Where the daughter is to be made aware of the application as it may be relevant to the current AVO proceedings – Where the application for leave is dismissed. |
| Family Law Act 1975 (Cth) |
| Bemert & Swallow [2009] FamCA 5 |
| APPLICANT: | Mr Bemert |
| RESPONDENT: | Not applicable |
| FILE NUMBER: | SYC | 959 | of | 2008 |
| DATE DELIVERED: | 1 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 27 June 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Not applicable |
Orders
Orders made in chambers 27 June 2016
The application for leave to file the Application in a Case delivered to the Registry, Family Court of Australia, Sydney, by Mr Bemert on 23 June 2016 is dismissed. I reserve my reasons.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bemert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 959 of 2008
| Mr Bemert |
Applicant
REASONS FOR JUDGMENT
On 27 June 2016 I made an order dismissing Mr Bemert’s application for leave to file an Application in a Case which he had delivered to the Registry of the Family Court of Australia at Sydney on 23 June 2016. I reserved my reasons for making that order which I now provide.
Mr Bemert is a veteran litigant whom the Supreme Court of New South Wales found was vexatious. In 2005 Patten AJ made an order that Mr Bemert shall not, without leave of the Supreme Court, institute proceedings in any court (see discussion at [110] and following in Bemert & Swallow [2009] FamCA 5).
On 15 January 2009 I made an order summarily dismissing Mr Bemert’s application against his daughter Ms Swallow in which he sought time with her four children. I also made an order that Mr Bemert not file any further application instituting any proceedings under the Family Law Act 1975 (Cth) (“the Act”) in any court exercising jurisdiction under that Act, without leave.
Mr Bemert is a deregistered medical practitioner.
In late 1982 and early 1983 Mr Bemert was involved in proceedings before the late Honourable Peter Nygh in which the late Justice Nygh granted sole custody of Ms Swallow to Ms Swallow’s mother, Ms Bemert, and ceased Mr Bemert’s access to Ms Swallow indefinitely.
In October 2007 an AVO was granted by the Local Court for the protection of Ms Swallow for a period of five years. That AVO has now been extended to March 2018. Mr Bemert has currently been charged on or about 26 April 2016 with breach of that order.
In 2009 I dismissed an application brought by the paternal great-grandparents for regular contact with their four great-grandchildren. In October 2013 the paternal great-grandparents again made a similar application. I found that they were acting in concert with Mr Bemert and that their application was instituted and pursued without any reasonable ground and its continuation would be an abuse of the process of the court. An order was made by me on 25 July 2014 pursuant to s 102QB(2)(b) of the Act prohibiting the paternal great-grandparents from instituting parenting proceedings in the future. Mr Bemert’s parents appealed the orders that I made in July 2014 and the Full Court of the Family Court have recently heard the appeal and have reserved their judgment in respect of that appeal.
The first order that Mr Bemert seeks in his Application in a Case is in the following terms:
1. Immediate Orders for the Plaintiff [as a vexatious litigant] to be granted leave to pursue Orders 2-11 inclusive.
The subsequent orders sought (which contain many subparagraphs) can be summarised as follows:
9.1.Expedition and for the matter to be dealt with on an ex-parte basis;
9.2.For Ms Swallow to undergo immediate and urgent psychiatric evaluation as a paranoid schizophrenic;
9.3.Mr Bemert to have “custody” of Ms Swallow;
9.4.Ms Swallow’s mother, Ms Bemert, provide a home for Mr Bemert, his current partner Ms Z and a resident psychiatric nurse to live in with Ms Swallow and for Ms Bemert to otherwise provide financial assistance to support those new living arrangements. The home that is to be acquired for Ms Swallow with funds from Ms Swallow’s mother to be registered in the name of Mr Bemert;
9.5.The removal of knives, solvents and matches from the residence in which Ms Swallow lives;
9.6.Ms Swallow’s driver’s licence be cancelled;
9.7.An order that Ms Swallow’s four children be psychiatrically evaluated;
9.8.The school at which Ms Swallow’s three younger children attend, be provided with a copy of the orders made;
9.9.Ms Swallow’s husband and her four children have unlimited access to her but that her mother only have supervised access to her;
9.10.Information be provided to Ms Swallow’s Rabbi and that the Rabbi’s visiting rights to Ms Swallow be restricted;
9.11.That the maternal great-grandparents have immediate once a week access to Ms Swallow’s children;
9.12.Ms Swallow walk each day for 40 minutes with Mr Bemert or another person or a registered personal trainer;
9.13.The current AVO (which Mr Bemert is currently charged with breaching) be set aside; and
9.14.Orders made by me on 15 January 2009 and in 2014 (in respect of litigation involving Mr Bemert’s parents and Ms Swallow) be set aside.
Mr Bemert did not appeal the orders that I made on 15 January 2009.
Mr Bemert’s application for leave is supported by an affidavit which he swore on 23 June 2016. That document annexes a statement of 111 pages and attaches 28 documents and is 5cm thick. He also delivered a further letter on 24 June 2016.
Amongst other things those documents disclose that Mr Bemert is in the process of making an application to the Australian Federal Police to audit the late Honourable Peter Nygh’s estate accounts to determine if he received a bribe of several million dollars in 1982 from Mr Bemert’s then father-in-law in order to pervert the course of justice. Mr Bemert believes that “that would explain why my ex-wife [Ms Bemert] was successful with custody”. Most of the affidavit is an exploration of historical events, mainly relating to particular pieces of litigation, from 1982 to the present time.
Mr Bemert asserts that as a result of collating and analysing the evidence presented by his daughter (and her husband) he is able to diagnose that his daughter suffers from a chronic psychiatric illness, namely, paranoid schizophrenia. There is nothing in the evidence presented to indicate that Mr Bemert has any qualification that would allow him to express that opinion. Mr Bemert has not seen Ms Swallow since at least 1997. Ms Swallow says she was sexually abused by her father when she was a child. Mr Bemert denies this.
In relation to almost all the orders sought by Mr Bemert, there is neither jurisdiction nor power to make the orders. Most of the orders sought by Mr Bemert are bizarre and without any discernible merit.
In relation to orders sought by Mr Bemert in favour of his parents, those matters have already been litigated and are the subject of a currently pending outcome in the Full Court.
The service of the material lodged by Mr Bemert upon his daughter would be an act of harassment and intimidation in circumstances where Mr Bemert is otherwise the subject of an AVO protecting his daughter from such harassment and intimidation.
It appears that Mr Bemert has otherwise:
17.1.Applied to Roads & Maritime Services for his daughter’s driving licence to be revoked or cancelled;
17.2.Informed the school at which three of his grandchildren attend that their mother suffers from paranoid schizophrenia and poses an unacceptable risk to her own children and to other students at the school; and
17.3.Informed NSW Police of the diagnosis he has made of his daughter and that “the NSW Police will be vigilant as to her activities and have alerted all police patrol cars in [Suburb Y] precinct as to her diagnosis”.
I mark the documents before me in this application for leave which Mr Bemert has lodged with the Registry as Exhibit 1, so that if Ms Swallow or her legal advisers wish to inspect them, they may do so. The documents are yet another attempt by Mr Bemert to pursue vexatious litigation against Ms Swallow.
Normally I would not worry Ms Swallow by alerting her to the attempt by her father to file these documents. But I do so, as the actions that Mr Bemert says he has taken in respect of the children’s school, the local police and the Roads & Maritime Services may well be either a breach of the current AVO or bases for extension of the terms of the current AVO in Ms Swallow’s favour and may be relevant to current proceedings pending in the Local Court.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 1 July 2016
Associate:
Date: 1 July 2016
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