· 2022-04-09T03:50:50+0000 · 750 posts

Father Seeks Variation of Final Parenting Order

Giordano & Stone [2022] FedCFamC2F 398 (31 March 2022)

Final parenting orders made in September 2019 and June 2021. The father filed a application seeking variation of final orders of September 2019 and June 2021. On the other hand, the mother seeks summary dismissal of such application and for the father to be prohibited from filing further applications pursuant to s 64B(2)(g) or in the alternate the father declared a vexatious litigant.

Facts:

The parties commenced their relationship in 2009 and separated on 21 February 2015. Proceedings were commenced in the Federal Circuit Court of Australia (as it was then known) in 2016, three years after the child was born.

On 13 September 2019, Judge Dunkley delivered his judgment made final parenting orders providing that the mother exercise sole parental responsibility; the child live with the mother and spend time with the father on alternate weekends from Friday afternoon to Monday morning and half of school holidays; certain restraints be placed on the father in respect to aspects of the child’s care; the child be placed on the airport watch list until 31 December 2023.

On 12 February 2020, the Full Court of the Family Court of Australia (as it was then known) heard an appeal by the mother against the orders of Judge Dunkley.

The appeal was partially successful insofar as the Full Court found that the primary judge had erred to the extent that he made orders in respect to the amount of time that the child was to spend with the father on school holidays, without first providing notice to the parties that he was contemplating making orders at variance with those proposed by both of the parties in respect to that issue.

On 15 April 2021, the remitted parenting issue was heard by Judge Howe. The father contacted C Family Centre, Suburb D for the purpose of requesting that they facilitate a mediation to address concerns that the father had with the parenting orders that had been made by Judge Dunkley. The family dispute resolution practitioner engaged by C Family Centre, Suburb D issued a Certificate under s 60I of the Family Law Act 1975 (Cth) (“the Act”) to the effect that mediation was not appropriate in those circumstances.

On 4 June 2021, Judge Howe delivered judgment and made orders that the child spend equal time with both parents during school holidays on a gradual basis, rather than the block time arrangement as sought by the father. Her Honour otherwise dismissed all outstanding applications, including the contravention applications which had been filed by the father.

Issue:

Whether or not the matters determined in both the judgments delivered on 13 September 2019 and 4 June 2021 should be varied.

Applicable law:

Evidence Act 1995 (Cth) s 140(2) - provides that without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

Family Law Act 1975 (Cth) s 45A - provides that the court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

Federal Court of Australia Act 1976 (Cth) s 31A - provides that the Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is prosecuting the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

Explanatory Memorandum to the Family Law Amendment (Family Violence and Other Measures) Bill 2018 - provides that an explicit power to dismiss unmeritorious applications or arguments brought to harass a party would improve outcomes for victims of family violence by allowing a court to prevent the use of its courtroom as a tool for perpetrators of family violence to perpetuate violence.

Baukham & Pitresso (No 2) [2020] FamCAFC 188 - where the Full Court delivered judgment in respect to the appeal.

Eliezer v University of Sydney (2015) 239 FCR 381; [2015] FCA 1045 - provided that the respondents as the moving parties bear the onus of persuading the Court that the application has no reasonable prospects of succeeding.

Freeman and Freeman [1986] FamCA 23; (1987) FLC 91-857 - provides that continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely.

HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 - where it has been observed that the word “frequently” involves “no numerical threshold” and the question whether a person has “frequently” instituted or conducted vexatious proceedings must be answered by reference to the circumstances of each particular case”.

Lohe v Sargent [2001] QSC 386 - provides that although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis.

Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152 - where the Full Court set out the following matters that the Court must consider when determining whether a change in circumstance exists.

Mbuzi v Griffith University [2016] FCAFC 10 - where the Court’s power to make an order under comparable legislative provisions was noted to be subject to conditions.

Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725 - provides guidance as to whether the Court should exercise its discretion to make orders revisiting final parenting orders which are already in place.

Sandex & Bondir (No 2) [2017] FamCAFC 130 - accepted the appropriateness of orders pursuant to s 64B(2)(g) of the Act restraining the making of any application under Part VII of the Act in relation to children without first making an ex parte application seeking and obtaining the leave of a judge.

Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 - where despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution.

SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16 - observed that the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.

Tindall & Saldo (2016) FLC 93–727; [2016] FamCAFC 146 - provides that the rationale for the “rule” in Rice and Asplund is to give expression to the principle that there must be an end to litigation particularly in relation to children.

Analysis:

During the course of the proceedings, the father advised the Court that his application for variation of the previous parenting orders was based upon changed circumstances. The father contended that, at the time of the orders made by Judge Dunkley on 13 September 2019, there was little evidence about the child’s views.

Secondly, the father contended that, at the time of Judge Dunkley’s judgment delivery, there was “no evidence available about [the mother] exposing [the child] to the risk of psychological issues”.

Thirdly, the father contends that, at the time Judge Dunkley delivered his reasons for judgment, there had been no contact time between the child and her father for an uninterrupted period of 14 months.

Fourthly, the father contends that, as at the date of the decision of Judge Dunkley, “[the child] had no contact with her extended family in Country M for an uninterrupted period of 14 months."

Fifthly, the father contends that, at the time Judge Dunkley delivered his judgment, the child occasionally mentioned interest “about visiting overseas countries with her father”.

Sixthly, the father contends that, at the time of Judge Dunkley’s judgment, there was “no evidence available about [the mother] planning not to allow [the child] to travel overseas with her father”.

Seventhly, the father contended that the evidence before Judge Dunkley that there had been an “incessant exchange of highly hostile communication between the parents” has now changed.

Lastly, it is the case that the evidence before Judge Dunkley was that there was, as the father states, a “total lack of collaboration between the parents” and that at the time Judge Dunkley delivered judgment, there was an interim AVO in place issued by the Region F Local Court which named the mother as a protected person.

The evidence that the father has presented to the Court does not establish that there has been a change in circumstances impacting upon the parents and/or the child of such significance that it warrants revisiting final parenting orders that have previously been made. The father is often abusive of the mother in his email communication, especially since October 2018. There is no excuse acceptable for his behaviour. The nature of the evidence filed by the father in these proceedings can be reasonably described as unnecessarily prolix and bordering on the obsessional.

The circumstances of this case are that it was the mother, rather than the father, who initiated the appeal which resulted in the matter being remitted for further hearing to another trial judge. At the same time, however, it is to be noted that, in the period subsequent to the judgment of Judge Dunkley, the father has filed several contravention applications.

Conclusion:

The Court concluded that the evidence does not establish a change in circumstances that, when considered individually or collectively, are of such significance that it justifies revisiting the final parenting orders made by both Judge Dunkley and Judge Howe.

The Court determined that the father’s application has no reasonable prospects of success and should be dismissed pursuant to s 45A of the Act. The father is prohibited from filing further applications pursuant to s 64B(2)(g).

#SummaryDismissal

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