Toohey & Dantes (No 3)
[2023] FedCFamC1F 147
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Toohey & Dantes (No 3) [2023] FedCFamC1F 147
File number(s): SYC 6702 of 2019 Judgment of: ALTOBELLI J Date of judgment: 15 March 2023 Catchwords: FAMILY LAW – CHILDREN – Variation of parenting orders – Application by father for unsupervised time with child – Where there is a long and complex litigation history – Where the application is found to be an abuse of process – Where time with father is not in the best interests of the child – Application is dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Expert evidence – Where the father seeks for orders appointing a single joint expert to be set aside – Where there is a long and complex litigation history – Where multiple judicial officers have made orders for expert evidence – Where the application is found to be an abuse of process – Order for Independent Children’s Lawyer to find appropriate expert – Order for parties to provide written submissions on the issue of whether the father should be declared a vexatious litigant pursuant to s 102Q.
Legislation: Family Law Act 1975 (Cth) ss 102NA, 102Q
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 7.04
Cases cited: PNJ v R (2009) 252 ALR 612; [2009] HCA 6
Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28
Division: Division 1 First Instance Place: Sydney Number of paragraphs: 59 Date of last submission/s: 13 February 2023 Date of hearing: 10 February 2023 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Santone Lawyers Counsel for the Independent Children's Lawyer: Dr. McConaghy Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
SYC 6702 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DANTES
Applicant
AND: MS TOOHEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
15 March 2023
THE COURT ORDERS THAT:
1.The Applicant father’s Application in a Proceeding filed 6 December 2022 is dismissed, save for Order 2, which seeks for the matter to be urgently set down for final hearing.
2.The final hearing is to be expedited after determining the timeframe in which an expert report will be available.
3.The Independent Children’s Lawyer is to search for an appropriate single joint expert, and any correspondence regarding this issue must copy in all parties and my Associate.
4.The Applicant father and Respondent mother are restrained from communicating in any way with any proposed expert pursuant to the above order.
5.When the Independent Children’s Lawyer has formed a view about the most suitable expert, my Associate, with each party copied in, is to be provided with the proposed expert’s resume or curriculum vitae together with information about cost and delay.
6.Within seven days of receipt of the information in the above order, the Applicant father and Respondent mother are to submit written submissions about the suitability of the proposed expert.
7.By 4pm on 31 March 2023, the parties are to provide written submissions on the issue of whether the Applicant father should be declared a vexatious litigant pursuant to the provisions of s 102Q of the Family Law Act 1975 (Cth) (“Act”).
8.The matter is listed for mention on 14 June 2023 at 9am.
Section 102NA Order
9.UPON NOTING that the requirements of s 102NA(2) of the Act will apply to any cross-examination occurring in these proceedings on or after 11 September 2019, neither party may cross-examine the other party personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the other party.
10.Within seven days of the date of these orders, the Applicant complete the “Scheme Application Form” and provide to Legal Aid NSW for the allocation of a legal practitioner.
11.The Independent Children’s Lawyer is to search for an appropriate single joint expert. Any correspondence regarding this issue should copy in all parties, including my Associate. However, both parties are restrained from communicating in any way with any such expert.
THE COURT NOTES THAT:
A.Pursuant to s 102NA(1) of the Act, there is an allegation of family violence between the parties, and the Court has made an order that the requirements of subsection (2) are to apply to the cross‑examination.
B.The parties have each been advised by the Court that:
a.pursuant to those requirements, neither party may cross-examine the other party personally;
b.pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
c.as to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
C.A copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme. If the Applicant fails to apply to Legal Aid NSW for legal representation pursuant to these orders, Legal Aid NSW will notify the Court and the matter will be relisted for further directions.
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 the pseudonym Toohey & Dantes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in a dispute between the parties in relation to discrete but important procedural issues in the substantive parenting proceedings between them.
BACKGROUND
Procedural background
On 8 November 2022 the Court granted leave to the father (“the father”), who is the respondent in the substantive proceedings, to file and serve an Application in a Proceeding together with an affidavit in support, provided that such an application be filed by no later than 4pm on 6 December 2022, and that the application be limited to the following issues:
(a)Whether the requirement for expert evidence in this case ought to be dispensed with;
(b)In the event that the Court does not dispense with the requirement for expert evidence, who should be appointed as the expert in this case;
(c)Whether the father’s time with the child ought to be varied; and
(d)Whether the Independent Children’s Lawyer ought to be discharged.
Pursuant to that order, the father filed an Application in a Proceeding on 6 December 2022 in which he sought certain orders. In his Outline of Case document filed on 3 February 2023, however, the orders that he proposed were as follows:
1.That the Expert process and Orders requiring an Expert report be set aside
2.The matter be urgently set down for a three day final hearing
3.That access to the Child for the Respondent Father be varied as follows:
a. That [X] spend time with his father [Mr Dantes] up to one night per week, up to one weekend per month, and two times of up to two weeks of school holidays each year
b. The father to provide two week's written notice to the Mother's lawyer of his intention to spend time with [X]
c. The evenings, weekends or weeks are to commence with the Father collecting [X] after school at [N School] and returning him 7pm for weeknight access, at 7pm Sunday night for weekends or at a time and place as arranged between the parties for weeks on holidays
d. For non-school puck-ups/handovers, they will occur out front of [Suburb P] Police station. The parties agree to these pick-ups/handovers being video and audio recorded
e. The Mother is to do everything to reasonable accommodate the provision of [X] spending time with his father including making [X] available as requested, arriving punctually, ensuring he has everything he needs with regard to clothing and personal items
f. The parties may vary and agree to alternate arrangements in writing
4.That Orders 10 (b), (c), (d), and 20 of the Orders of Judge Smith dated 16 October 2019 be repealed.
If the Expert Process is Order to proceed, as alternate orders for 1 and 2 above:
1.The Father to provide a list of three names of Experts
2.The Expert process to proceed as follows:
a. The Parties to agree on an engagement letter is accordance with thes orders
b. The ICL is not to have any form of communication with the Expert in relation to this matter
c. The Expert must be available to proceed, conduct interviews and produce a report within six months or the matter will proceed to final hearing without Expert evidence
d. In accordance with the Expert's timetable the parties are to submit to the Expert any documents filed in this matter SYC6702/2019
e. No documents or content from SYC2265/2014 is to be provided to the Expert
f. In accordance with a timetable and schedule, the Expert interviews are to be conducted as follows:
i.Both parties will be present during the interviews at all times. Where the interviews are of one party only the non-interviewed party will remain silent as per the Expert’s instruction;
ii.Both parties will be at liberty to record the interviews and provide a transcript of the interviews into evidence in this matter;
iii.Both parties are permitted to invite one person to attend with them: this not being a legal practitioner;
iv.Both parties can ask the Expert to interview any number of party’s witnesses in person or via electronic communication: such interviews may be recorded and that recording may be used to produce a transcript for entering into evidence in this matter. A witness list in this regard is to be provided to the other party prior to the Expert process for compliance with v. below.
v.No witnesses that are specific to SYC2265/2014 only, including members of the [Vader] family, witnesses called by the Applicant in that matter, or [Dr B] are to be interviewed as witnesses or to enter any evidence into this matter in any form.
vi.Both parties are to be given a mechanism to respond to anything raised by the other party in the Expert interviews whether during the interview, verbally, or subsequently in writing.
f.The Mother is to pay all costs associated with the Expert process and for appearance for cross examination at the final hearing.
(As per the original)
The respondent mother (“the mother”), who is the applicant in the substantive proceedings, filed a Response to an Application in a Proceeding on 22 December 2022. Her Outline of Case document filed on 27 January 2023 sets out the orders she proposed as follows:
1.That the Application filed on 6 December 2022 be stayed, pending payment of outstanding costs orders as follows:
a. Costs order dated 14 March 2022 in the sum of $1,500.
b. Costs order dated 19 May2 022 in the sum of $500.
2.That the Application filed on 6 December 2022 be dismissed.
3.That pursuant to Part 7.1 of the FCFCOA rules 2021, [Dr B] be appointed as the single joint expert in these proceedings to enquire into and report upon matters relating to the welfare of the children [X] born […] 2016 and [Z] born […] 2011, including but not limited to those considerations set out in section 60CC of the Family Law Act 1975.
4.That in the alternative to order 3 above, pursuant to Part 7.1 of the FCFCOA Rules 2021 [Dr Q] of [R Psychology] be appointed as the single joint expert in these proceedings to enquire into and report upon matters relating to the welfare of the children [X] matters relating to the welfare of the children [X] born […] 2016 and [Z] born […] 2011, including but not limited to those considerations set out in section 60CC of the Family Law Act 1975.
5.That the mother pay the costs of the single joint expert.
6.That the father be restrained from communicating with the single joint expert (including but not limited to the terms of the appointment of the expert, whether the appointment is proceeding and scheduling dates of attendances with the expert), save for him being able to provide the expert copies of all documents he has filed in these proceedings (in accordance with the joint letter of instruction) and being informed about arrangements for his attendance at any appointments with the expert).
7.That the ICL forward the single joint expert a letter of instruction in the form annexed to the Response in the Application in a Proceeding.
8.That the father be restrained from asking [X] about locations he attends and discussing spending time with him in the future.
9.That the father be restrained by injunction from bringing any further applications in respect of varying orders concerning:
a. His time with the child [X];
b. Contact with the child [X];
c. The appointment or dispensation of an expert appointment in these proceedings.
10.That a S102NA order is made in respect of the Father.
11.That the Father pay the Mother’s costs of and associated with this application.
(As per the original)
The only order sought by the Independent Children’s Lawyer in their Outline of Case document filed on 27 January 2023 was for the father’s Application in a Proceeding to be dismissed.
At the hearing of this matter held on 10 February 2023, the mother did not press her application for Order 1, which was a stay of proceedings pending the payment of outstanding costs orders.
Background
The father in this case is 54 years old, and the mother is 48 years old. The mother has a child from an earlier relationship, who is 11 years old. The father has a child from an earlier relationship, who is 10 years old. The mother and father’s only child together, X, was born in 2016, and is six years old. X lives with his mother and step-sibling in Sydney. The father has limited communication or contact with his child from an earlier relationship, indeed, they have spent no time together nor communicated with each other since October 2019. X lives with his mother and has not seen his father in person for three years. The current order for the father to spend time and communicate with X is based on orders made by Judge Smith on 16 October 2019, as varied by Rees J on 17 December 2021. In simple terms, the orders provide that the father spend supervised time with X, and that he communicate by telephone or videoconference software with the child on two occasions each week. Both parents assert that the other is not complying with the order in relation to communication. No finding is possible about that issue in the present context.
There are concurrent proceedings in this Court between the father and the mother of his child from an earlier relationship. For present purposes, in these reasons this litigation will be described as “the concurrent proceedings”.
The mother and father commenced cohabitation in a suburb of Sydney in late 2015. They separated on 13 February 2019. The present proceedings were commenced by the father on 4 October 2019 and have continued since then.
The mother and X live in an area of Sydney. It is not clear to the Court where, precisely, the father lives, but he states his address on his affidavit as being Suburb S, a suburb in Melbourne, Victoria. The only uncertainty in this regard relates to the fact that the father has previously appeared in this litigation remotely by Microsoft Teams, and the Court had formed the impression that he was working overseas at that time.
A feature of this case seems to be the inability of the parents to successfully implement and sustain orders for supervised contact, and orders in relation to the appointment of single joint expert.
UNCONTESTED MATTERS
Despite the intensity of the litigation between the parents, there are some uncontested matters.
Both parents make allegations against each other about family violence, and the other denies the same. The mother sought an order under section 102NA of the Family Law Act 1975 (Cth) (“the Act”) and the father conceded in submissions that his own contentions about family violence would lead the Court to conclude that the aforesaid section does apply to this case.
Both parents raise concerns about the other’s mental health. The father believes that the mother may suffer from a mental health disorder. The mother denies this. The mother believes that the father may have a personality disorder with narcissistic traits, and that he has mood fluctuations and has expressed suicidal ideation. The father acknowledges that in 2012 he was first diagnosed with anxiety and depression. In early 2014 he was scheduled pursuant to the Mental Health Act 2007 (NSW) and involuntarily admitted to the T Hospital for three or four days. He contends, however, that since 2018, and as a result of engaging in long-term psychological treatment and support, his mental health conditions are in full remission.
The Family Consultant who conducted the child dispute conference on 12 June 2020 recommended that an expert psychiatric report be obtained in this matter.
It is common ground that the parental relationship has broken down.
It seems common ground that before separation the father was actively involved in X’s care.
It is common ground that Dr C, who had been appointed as single joint expert, declined to accept the appointment.
ISSUES FOR DECISION
The following issues arise for decision:
(a)Should the Court dispense with the need for expert evidence, and if not, who should be the expert in this case?
(b)Should the existing parenting orders be varied, and if so on what terms?
(c)Should an order be made under section 102NA of the Act?
(d)Should any further orders be made?
MATERIAL BEFORE THE COURT
In support of his case, the father relied on:
(1)Case outline filed 3 February 2023, including:
(a)Minute of Proposed Orders (Amended); and
(b)Chronology
(2)Application in a Proceeding filed 6 December 2023;
(3)His affidavit filed 6 December 2023;
(4)An exhibit tendered and marked A1; and
(5)Written submissions received on 13 February 2023.
In support of her case, the mother relied on:
(1)Response to Application in a Proceeding filed 22 December 2022;
(2)Her affidavit, including exhibits, filed 22 December 2022;
(3)Case outline filed 27 January 2023;
(4)Child Dispute Conference Memorandum dated 12 June 2020; and
(5)Email correspondence to Altobelli J’s chambers on 13 February 2023.
In support of their case, the Independent Children’s Lawyer relied on:
(1)Exhibits tendered and marked ICL1–ICL2; and
(2)Email correspondence to Altobelli J’s chambers on 13 February 2023.
DISCUSSION
The expert evidence issue
In effect, the father asks the Court to set aside previous orders it has made in relation to expert evidence. He contends that there is no need for expert evidence in this case and expresses concerns about the appointment of Dr C.
If the Court as presently constituted were to accede to the father’s request, it would be acting directly contrary to the decisions made by several judicial officers before today.
For example, on 7 July 2020 a senior registrar made an order appointing a single joint expert. It was left to the parents, however, to identify the expert and to frame the terms of reference. They were unable to do so. The issue eventually went before a senior judicial registrar on 27 October 2020, when judgment was reserved. Orders were made on 4 February 2021 to the effect that Dr C be appointed as the expert at the wife’s expense. In later proceedings, this time before another senior judicial registrar, the father unsuccessfully sought to vary the order in relation to expert evidence. Indeed, the senior judicial registrar ordered that the psychiatric report prepared by Dr B in the concurrent proceedings be provided to Dr C. The father sought a review of the decision of the senior judicial registrar dated 2 June 2021. This came before Rees J, who on 17 December 2021 set aside certain orders of the senior judicial registrar made on 2 June 2021. Importantly, in the present context, her Honour made more detailed orders for supervised time between the father and X. Moreover, her Honour settled the form of the letter of instruction to be provided to the single expert. Thus, in effect, the senior registrar, senior judicial registrars, and Rees J all concluded that expert evidence was needed in this case and made orders in that regard. Clearly the father does not accept this decision.
Abuse of process
It is an abuse of process for the father to once again raise this issue before the Court. At [25] of the High Court’s decision in Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507, French CJ, Bell, Gagelar and Keane JJ describe abuse of process:
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
(Footnotes omitted)
Their Honours referred to the High Court decision in PNJ v R (2009) 252 ALR 612, where the Court said at [3]:
It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:
(a)the invoking of a court's processes for an illegitimate or collateral purpose;
(b)the use of the court's procedures would be unjustifiably oppressive to a party; or
(c)the use of the court's procedures would bring the administration of justice into disrepute.
(Footnotes omitted)
The father’s persistent re-agitation of the issue of expert evidence is inappropriate and unjustifiably oppressive to the mother, and if this Court acts contrary to the orders made by multiple judicial officers for expert evidence, it would bring the administration of justice into disrepute.
Whether an expert is needed
Doing the best the Court can to understand the father’s case, he believes that the issues for determination are relatively simple, and require no expert evidence. Any concerns about his mental health should be assuaged by the evidence that he has led from his treating psychologist, Ms G, dated 30 January 2020.
The Court notes that this report predates the very first order made on 7 July 2020. It is unclear whether the father relied on the report in the earlier litigation. If he did, the Court nonetheless ordered an expert report. If he did not, he advances no reason for not doing so.
In any event, a reading of the report indicates that it was based on the history given by the father only, various treatment notes and reports of other doctors, and an affidavit of Ms Toohey, together with the impressions formed about the father based on his presentation. The report is generally very affirming and supporting of the father but not unequivocally so. For example, at paragraphs 21–22 Ms G states:
I do not believe that the father meets criteria for a Personality Disorder. The aforementioned vulnerabilities do not suggest that [Mr Dantes] is dangerous or mentally unstable. He would, however, benefit from ongoing psychological support to address his difficulties and to develop strategies necessary to regulate emotions effectively in the time of potential crisis.
[Mr Dantes] has engaged well in his therapy and appears to be committed to continue his psychological treatment. I believe that Acceptance and Commitment Therapy as well as Dialectical Behaviour Therapy skills would be very appropriate therapeutic approaches.
The father leads no evidence of receiving “ongoing psychological support to address his difficulties” or of “Acceptance and Commitment Therapy as well as Dialectical Behaviour Therapy”. The report neither assists the father’s case nor reassures the Court about his mental health. Perhaps ironically, in his Outline of Case document filed 3 February 2023, even the father refers to his “Low level mental health issues (adjustment disorder with resolved anxiety and depression) related to proceedings”, but is seemingly trenchantly opposed to independent expert evidence which might establish precisely that.
Of concern to the Court are what might be loosely described as frequent themes in the father’s submissions, reflected, for example, in his allegations about the expert process being “irrevocable [sic] tainted”; the inappropriateness of Dr C as an expert due to a perceived cultural affiliation with the mother and her family; attacks on the professional integrity of both the mother’s solicitor and Independent Children’s Lawyer; and frequent allegations of abuse of process which disadvantage him (without any seeming reflection on any abuse of process perpetrated by him). The possibility of paranoia is raised by the father’s own conduct and is thus an issue that needs to be appropriately explored in expert evidence.
Even if several other judicial officers had not previously found that expert evidence was needed in this case, this Court would have no hesitation in so finding. Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) states:
7.04 Order for single expert witness
(1) The court may, on application or on its own initiative, order that expert evidence be given by a single expert witness.
(2) When considering whether to make an order under subrule (1), the court may take into account any matters relevant to making the order, which may include the following (without limiting the matters which may be relevant):
(a) the overarching purpose of these Rules (see rule 1.04) and the purpose of this Part (see rule 7.02);
(b) whether expert evidence on a particular issue is necessary;
(c) the nature of the issue in dispute;
(d) whether the issue falls within a substantially established area of knowledge;
(e) whether it is necessary for the court to have a range of opinion.
(3) The court may appoint a person as a single expert witness only if the person consents to the appointment.
(4) A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).
The Court finds that rr 7.04(2)(b) and (c) of the Rules are satisfied in this case. Evidence from a psychiatrist is preferable, but if this cannot be obtained in a timely manner, a forensic psychologist will suffice.
Who the expert should be in this case
The expert in this case will not be Dr B, for reasons articulated by Rees J in her Honour’s orders of 17 December 2021, the correctness of which are beyond doubt.
Whether the father should be given another opportunity to have input into the selection process
In his proposed orders commencing at the bottom of page 10 of his Outline of Case document filed on 3 February 2023, the father describes a highly prescriptive but completely unworkable arrangement, for the following reasons:
(1)Historically the parties have been unable to agree on anything to do with the expert evidence process; and
(2)An expert is engaged because of their expertise and hence it is highly inappropriate for the father to seek to dictate in his orders who is present at interviews, or that the parties have liberty to record the interviews, or that the parties can dictate who is interviewed.
The orders proposed by the father reflect an attitude of scepticism about the need for expert evidence, and an insistence that if it be ordered it be on his terms only. Once again the Court observes that it is an abuse of process for him to re-litigate this issue given what seems on the evidence to be his past lack of cooperation, if not obstruction, of previous attempts to appoint an expert. It is ironic that the father has seemingly obstructed the very thing that he has been seeking, that is, a final decision that will result in him resuming the once good relationship he had with his son. The only way that this can be achieved, regrettably, is by excluding the father from the expert selection process. The Court will be the arbiter of who the expert will be, and the letter of instruction will be in terms of that decided by Rees J in the orders of 17 December 2021.
The Independent Children’s Lawyer supported the appointment of Dr Q. This was the mother’s alternate to Dr B, who the Court has rejected. The father’s response to the suggestion on the day of the hearing that Dr Q be appointed as the expert was to say that he had not made any enquiries about her. Time was afforded to him to make those enquiries and to provide short submissions to the Court in this regard. In written submissions received on 13 February 2023, he submitted that Dr Q was relatively inexperienced, with only seven years in practice. Moreover, Dr Q’s qualifications and experience were not directly relevant to the present case.
Dr Q’s resume was in evidence. The father correctly submits that Dr Q is relatively inexperienced and seems to have research and practice interests that are not directly relevant in a case such as the present. Her experience as a forensic psychologist is limited. Her experience with high conflict families in the past seems to have focused on facilitating parenting order programs. The present case is an example of intractable parental conflict where there are issues about diagnosed and undiagnosed mental health issues. The Court accepts the father’s submission that Dr Q is not appropriate in this case.
The father makes two suggestions about experts in this case. He provides information about these experts by reference to a website which provides minimal information about them. No resume or curriculum vitae is provided. Even in the brief description that he provides in his submissions dated 13 February 2023, there is no suggestion that either expert has the experience or qualifications to assist the Court in relation to diagnosed and undiagnosed mental health issues.
The Court concludes that expert evidence is needed, but the expert cannot be Dr Q, or those experts nominated by the father. It will be necessary for the Independent Children’s Lawyer to, once again, search for an appropriate single joint expert to provide the evidence that is needed in this case. Whilst the Independent Children’s Lawyer should include the father, the mother’s lawyers, and my chambers in any correspondence with a potential expert, both parents will be restrained from communicating in any way with any such expert. When the Independent Children’s Lawyer has formed a view about the most suitable expert, my chambers are to be notified with each party copied in. The Court will, of course, expect the Independent Children’s Lawyer to provide a resume or curriculum vitae together with information about cost and delay. On receipt of this information in chambers, each parent will have seven days to make written submissions about the suitability of the proposed expert. The Court will then adjudicate on the issue.
Whether the parenting order should be varied
The father’s varied parenting proposal was for X to spend time with him up to one night per week, up to one weekend per month, and two periods of two weeks in the school holidays of each year, with changeovers to occur either at X’s school, or in front of Suburb P Police Station. The father also proposed to provide two weeks’ written notice to the mother’s lawyers of his intention to spend time with X. Both the mother and the Independent Children’s Lawyer opposed this.
For present purposes the context of the father’s application must be understood. On 17 December 2021 Rees J made the following order:
(2)That, to facilitate the operation of the orders for supervised time between the father and the child [X] born […] 2016, made on 16 October 2019, the father notify the mother and the Independent Children’s Lawyer of the contact details of contact services willing to provide supervision in Sydney and, if more than one service is available, the Independent Children’s Lawyer shall nominate the appropriate service.
Her Honour decided that the order for supervised time made on 16 October 2019 continue, and that the father notify the mother and Independent Children’s Lawyer of the contact details of contact services willing to provide supervision in Sydney. The father did not do so. His only explanation in submissions was that the mother had previously tainted the process (presumably of supervised contact) and he had previously submitted an alternate agency (which was presumably not accepted). He then made submissions to the effect that supervised contact was too slow to commence, too expensive, not supported by either party at that time, and never intended as necessary beyond three months. He submitted that supervised contact did not provide meaningful time with his son, was not supported by the facts of the case, and was no longer appropriate for a child of his son’s age. Clearly, the father contended that supervised contact was not needed, and even if it were needed, it could be facilitated by the father’s partner, or family members, but he lead no evidence in the present application from any proposed supervisor.
It is not clear to the Court why it should consider the father’s application in circumstances where he did not take advantage of the opportunity given to him by Rees J. Indeed, once again it smacks of abuse of process. Little is known about the father’s personal circumstances. The nature of the father’s relationship with his son is mere conjecture given the length of time that has passed since they have either met, or communicated with each other. The father does not state that he lives in Sydney. How he would practically implement the very order that he proposes is unknown to the Court. For example, when he proposes at Order 3b that he provide two weeks’ written notice to the mother’s lawyer of his intention to spend time with X, this suggests to the Court some reservations on the father’s own part about his ability to consistently spend time with his son.
The Court is troubled by the fact that the father did not disclose the number of previous applications to vary the parenting orders, all of which were unsuccessful. The litigation history of this matter is clear. The interim orders were made on 16 October 2019. He sought to vary these orders by way of applications made by him on 25 February 2020, 26 May 2020, 4 August 2020, and by way of a response to the mother’s Application in a Proceeding filed on 19 March 2021 (the response being dismissed by the orders of 2 June 2021). His review of the decision on this issue was dismissed by Rees J on 17 December 2021.
The father’s present application is not only an abuse of process, but is palpably not in the best interests of his son on the evidence before the Court.
DECISION
Having regard to the above, the father’s application to dispense with the need for expert evidence is dismissed.
His application to vary the existing parenting orders is also dismissed.
Save to the extent that the Court agrees with the father that Dr Q is not an appropriate expert in this case, the names proposed by the father are not accepted by the Court. The father’s proposals for how the expert should be selected, and how the expert report process should be conducted, are rejected by the Court.
The Court does agree with the father that the final hearing of this matter should be expedited. However, that is not possible until there can be some understanding about when an expert report will be available.
As proposed by the mother, an order under s 102NA of the Act will be made in respect of the father.
Regrettably, the various abuses of processes perpetrated by the father that have been identified in these reasons for judgment raise the issue of whether, as indeed proposed by the mother, he should be restrained from bringing further applications under s 102Q of the Act. This matter was not listed for determination, so the Court will give all parties an opportunity to provide written submissions on the issue of whether the father should be declared a vexatious litigant pursuant to the provisions of s 102Q of the Act. Directions will be made in this regard.
ORDERS
The father’s Application in a Proceeding filed on 6 December 2022 is dismissed, save for Order 2, which seeks for the matter to be urgently set down for final hearing. The final hearing will be expedited after determining the timeframe in which an expert report will be available.
The Independent Children’s Lawyer is to search for an appropriate single joint expert. Any correspondence regarding this issue should copy in all parties, including my Associate. However, both parties are restrained from communicating in any way with any such expert.
When the Independent Children’s Lawyer has formed a view about the most suitable expert, my Associate is to be notified, with each party copied in. The Independent Children’s Lawyer is to provide a resume or curriculum vitae together with information about cost and delay. On receipt of this information, each party will have seven days to make written submissions about the suitability of the proposed expert.
By 4pm on 31 March 2023, the parties are to provide written submissions on the issue of whether the father should be declared a vexatious litigant pursuant to the provisions of s 102Q of the Act. This order will also apply to the parties involved in the concurrent proceedings.
An order will be made under s 102NA of the Act to prohibit the father from being able to cross-examine the mother at final hearing.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 15 March 2023
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