Toohey & Dantes (No 3)

Case [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…

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AGLC
Toohey & Dantes (No 3) [2023] FedCFamC1F 147
Case
[2023] FedCFamC1F 147
Decision Date

CaseChat Overview and Summary

The parties in this case are engaged in ongoing parenting proceedings. The father seeks to alter the existing orders regarding expert evidence, parenting arrangements, and the involvement of the Independent Children’s Lawyer. The Court was required to determine whether the need for expert evidence should be dispensed with, who should be appointed as the expert if the requirement remains, whether the father’s time with the child should be varied, and whether the Independent Children’s Lawyer should be discharged. The Court considered the submissions and evidence presented by both parties, as well as the previous decisions made by other judicial officers.

The Court found that it would not dispense with the requirement for expert evidence, contrary to the father's request. Previous orders by senior registrars, judicial registrars, and Rees J had all concluded that expert evidence was necessary. The Court was reluctant to act contrary to these decisions. Regarding the appointment of an expert, the Court considered the father’s proposal but ultimately decided against appointing Dr C, given the history of refusals and difficulties in the past. Instead, the Court mandated the father to provide a list of three potential experts, and the parties were to agree on an engagement letter and terms of reference. The Court also determined that the existing parenting orders should be varied to allow for more defined and supervised time between the father and the child. Finally, the Court decided that the Independent Children’s Lawyer should not be discharged, finding their involvement beneficial in the best interests of the child.

Orders

Orders of the court

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Background

Background to the litigation

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.BACKGROUNDProcedural 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 aside2.The matter be urgently set down for a three day final hearing3.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 yearb. 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 holidaysd. 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 recordede. 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 itemsf. The parties may vary and agree to alternate arrangements in writing4.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 Experts2.The Expert process to proceed as follows:a. The Parties to agree on an engagement letter is accordance with thes ordersb. The ICL is not to have any form of communication with the Expert in relation to this matterc. 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 evidenced. In accordance with the Expert's timetable the parties are to submit to the Expert any documents filed in this matter SYC6702/2019e. No documents or content from SYC2265/2014 is to be provided to the Expertf. 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)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.DISCUSSIONThe 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

Ratio Decidendi

Legal Principle Established

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