Barr & Barr (No 3)
[2023] FedCFamC1F 873
•17 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barr & Barr (No 3) [2023] FedCFamC1F 873
File number: MLC 11085 of 2018 Judgment of: HARTNETT J Date of judgment: 17 October 2023 Catchwords: FAMILY LAW – PARENTING – Rice v Asplund – Where the father seeks to vary final parenting orders made by consent – Where the father seeks sole parental responsibility – Where the father seeks the children live with him and a change of the children’s schooling – Where the father seeks a passport and travel order permitting the children to travel with him to New Zealand to visit paternal grandparents – Where the father has moved homes and repartnered – Where the mother seeks no change to the current parenting orders – Where the mother makes a vexatious litigant application – Where both parents have an acrimonious relationship – Where there has been no significant change in circumstances since making of the final orders – No change to the final parenting orders – The father be permitted to travel to New Zealand with the children – Passport order made – The father to retain possession of the children’s passport – The children to attend school unless medical certificate provided – All extant applications dismissed Legislation: Family Law Act 1975 (Cth) Part VII, ss 60CA, 60CC, 79A, 102Q, 102QB Cases cited: Attorney-General v Altaranesi [2013] NSWSC 63
Baisman & Cartmill [2022] FedCFamC1A 36
Carriel & Lendrum (2015) FLC 93-640
DL & W (2012) FLC 93-496
Goode & Goode (2006) FLC 93-286
Rice v Asplund (1979) FLC 90-725
Walden & Cooper [2020] FamCA 104
Walter & Walter [2016] FamCAFC 56
Division: Division 1 First Instance Number of paragraphs: 65 Date of hearing: 29 August 2023 Place: Melbourne The Applicant: Litigant in Person The Respondent: Litigant in Person ORDERS
MLC 11085 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BARR
Applicant
AND: MS BARR
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
17 OCTOBER 2023
THE COURT ORDERS, BY CONSENT, THAT:
1.The child Y born 2010 attend H School and remain in attendance at H School until any further agreement between the parties in writing.
THE COURT ORDERS THAT:
2.The Application of the father as contained in Amended Application for Final Orders filed 5 July 2023 be dismissed save that:
(a)Orders 14(c) and 14(d) of the Orders made on 14 February 2020 be discharged and in lieu thereof Orders 3 and 4 herein are made together with further Orders as provided for in Orders 5 and 6 herein.
3.Within seven (7) days of a written request by the father, the mother do all such acts and things and sign all such documents as may be necessary or required to renew or obtain Australian passports for Y born 2010 and X born 2013 (collectively “the children”) including signing and returning to the father all passport application documents and consent forms and any other associated documents that may be required AND in the event that the mother fails or refuses to comply with this Order within 14 days of any such request being made by the father then the father be allowed by this Order to apply pursuant to s 11 of the Australian Passports Act 2005 (Cth) to permit the renewal and/or issue of an Australian passport for the children without requiring the consent of the mother with the Court hereby being satisfied that such order is in the children's best interests. Any costs associated with the obtaining of such passports shall be born solely by the father.
4.The father shall retain possession of the children's passports and release said passports to the mother for the purpose of overseas travel pursuant to Order 14(b) of the Orders made 14 February 2020 with the mother to return the passports to the father within 7 days of the children’s return to Australia.
5.The children be permitted to travel to New Zealand with the father in each calendar year commencing 2024 for a period of up to two (2) weeks.
6.The mother ensure that the children attend school on each school day unless she has obtained a medicate certificate from a general practitioner stating that the children or either of them are too unwell to attend school. The mother shall then forthwith provide such medical certificate to the father.
7.The application of the mother as contained in Amended Response to Final Orders filed 11 August 2023 be dismissed.
8.Otherwise all extant applications are dismissed and the matter is removed from the list.
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 Barr & Barr has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
This matter is longstanding, having commenced in September 2018, some five years ago. Whilst there have been final parenting and final property orders made as between the parties, the parties have continued to litigate, as litigants in person, in the circumstances described below.
The parties are the applicant father (“the father”) and the respondent mother (“the mother”). The parties married in 2006 after cohabiting for about eighteen months. The parties then separated in June 2017. They are not divorced. Whilst the father blames the mother for this state of affairs, there is of course, and has been for many years, nothing, save the payment solely of a filing fee, that would prevent the father from seeking a Divorce Order.
There are two children of the marriage, Y born 2010, aged twelve years and X born 2013, aged ten years. The children live with the mother and spend time with the father generally in accordance with final parenting orders made on the 14 February 2020 in the then Federal Circuit Court of Australia (now Federal Circuit and Family Court of Australia (Division 2) (“Division 2”).
The father re-partnered in 2017. He and his partner, Ms J, and her two children of a previous relationship, currently reside in a rental premises in Suburb K, a suburb located approximately 20-30 minutes from the mother’s residence. Prior to the father’s recent move to Suburb K, about which he did not inform the mother, the father’s household lived nearby in Suburb L. The father’s partner is an educator. The father’s partner has two children, two girls, one who is sixteen years of age and in Year 10, and the other who is eighteen years of age and in Year 12.
The mother has not re-partnered and continues to reside in the area the parties lived in whilst together, namely Suburb M. The mother is occupied in home duties. She is in receipt of Centrelink Benefits and Spousal Maintenance payments (though interestingly, both parties referred to these payments as Child Support payments as later discussed).
The parties ongoing difficult personal relationship, which is quite toxic for their children, has been made worse by their financial relationship. The mother’s Initiating Application filed 24 September 2018 and the father’s Response filed 12 October 2018 ultimately involved both parties seeking final property and parenting orders. The final parenting orders were made by consent and followed the earlier release of a Family Report prepared by Ms N dated 6 May 2019. That report contained recommendations including that the parties have equal shared parental responsibility for the children and that they live primarily with the mother by way of interim arrangement. The parties converted those recommendations into final orders.
Final property orders were made in Division 2 on 17 February 2022, notably two years after the resolution between the parties of their outstanding parenting orders applications. The final property orders were made by the Court. The property orders proceeding transversed a period of approximately three years and four months. Throughout that period, matters of property adjustment, spousal maintenance for the mother, including the payment of rent, and child support payments by the father to the mother were attended by considerable acrimony on the part of each party.
That acrimony continued beyond the making of the final property orders. In part that came about because the final orders provided for the sale of the business ‘B Business’ (as operated by the father) held in a corporate entity of which the father was the sole director. The mother was to receive a part of the proceeds of that sale. Before there could be a sale, the father claimed he had cause to place the business in voluntary administration. That occurred in early 2022. He claimed to have no assets nor income as a result. He was unable to access Centrelink payments by virtue of being a New Zealand citizen and could pay no child support payments to the mother for a period. He was entirely financially dependent on his partner and had commenced to reside with her in early 2022. The mother did not receive the settlement sum which she had anticipated. On 4 April 2022, she made an application seeking orders preventing the father from placing the business into voluntary administration, which I note at that time had already occurred. Additionally, she sought a suite of other orders in relation to the father providing her with financial disclosure; that the father pay ‘compensation of $326,000 if the business cannot be saved’; and that the father otherwise continued to pay her rent in accordance with the final property orders.
The father responded to the mother’s (property orders) proceeding, on 5 April 2022, being approximately two years after the making of final parenting orders, seeking a re-visiting of those parenting orders. The two year period that had elapsed was one of upheaval for all Victorians (indeed for most Australians), it being the period where the government response to COVID-19 involved lockdowns and other restraints. The father sought, amongst other orders, an order for sole parental responsibility, and for the children to reside with him for ten nights out of fourteen in school terms. The father alleged a raft of contraventions of the final parenting orders by the mother in the 2020 and 2021 COVID-19 years, together with further alleged contraventions in the early part of 2022. I note, significantly, that none of these were pursued in a Contravention Application at the relevant time and nor have they since been pursued. The father further made complaint about the mother’s permissive approach to parenting, and the children’s failure to attend school and extracurricular activities whilst in the mother’s care. I observe that his complaints did not significantly differ from his earlier complaints before the making of the final parenting orders save clearly there were complaints as to school attendances and the lack thereof during the COVID-19 periods and beyond. The mother responded with denial and/or reasonable excuse as to many matters concerning the operation of the parenting orders and the father’s factual allegations in respect thereto. She, as she has done since 2018, continued to make allegations against the father of family violence, mostly historical, and a lack of warmth in his relationship with the children because of his alleged cold persona. I note the Family Report writer, in her 2019 report, specifically challenged the mother as to her perception which was not supported by the children’s observed interaction with their father. The mother also accused the father of controlling and financially abusive behaviour toward her, which consequently caused her need to move with the children from Suburb M to Region P for a period because of the father’s cessation of rental payments to her.
The proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1) by order of a judge of Division 2, on 12 April 2022. Extant property applications, which subsequently included a s 79A of the Family Law Act 1975 (Cth) (“the Act”) application by the father, not filed until 30 September 2022; and a spousal maintenance and child support lump sum payments application made by the mother, filed on 15 December 2022, were subsequently finalised in the Court by McNab J on 23 February 2023. Amongst the orders made on that day were orders that the father pay to the mother spousal maintenance in the weekly sum of $500 for a period of two years; and that the father continue to meet the private health insurance costs of the wife and children and meet the school fees of the children’s public school, together with extracurricular costs associated with the schooling. When the father’s evidence is that he pays to the mother $500 a week in child support payments, by reference to this order, it is not correct. The mother’s evidence is that the father is $5,000 in arrears of these payments. The father denied that allegation. The parties have not registered for child support assessment or collection and there was therefore no independent record of any child support payments as made by the father before the Court nor indeed any suggestion of payments made by the father other than those ordered in February 2023, which did not include a periodic weekly sum. Any arrears of spousal maintenance payments as alleged by the mother and denied by the father could not be explored with neither party providing the necessary corroborative evidence.
THE ISSUE
What remains now for the Court to deal with is whether the final parenting orders made 14 February 2020 should be set aside and/or varied in the context of a Rice v Asplund (1979) FLC 90-725 (“Rice v Asplund”) consideration.
At the hearing, both parties were afforded procedural fairness as to the nature of the Rice v Asplund threshold issue and the manner in which it was open to the Court to consider the issue. Both parties understood the issue for determination to be whether the father established that there was a change of circumstances of sufficient magnitude to warrant a revision of the existing final parenting orders. Both parties expressly advised the Court of their consent to the threshold issue being considered as a preliminary enquiry, and that is the manner in which the hearing proceeded.
LITIGATION SINCE THE FINAL PARENTING ORDERS
The final parenting orders made by consent on 14 February 2020, provided:
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the children, [Y] born […] 2010 and [X] born […] 2013 (collectively, the children).
3.The children live with the Wife.
4.The children spend time with and communicate with the Husband as follows:
(a)During school terms commencing from the date of these Orders to the conclusion of Term 2, 2020:
(i)Each alternate weekend from the conclusion of school or 3.30pm (whichever is the earliest) on Friday to the commencement of school or 9.00am (whichever is the earliest) on Monday save in the event the Monday is a public holiday or a non-school day then time shall be extended until the commencement of the next school day;
(ii)Each Tuesday from the conclusion of school or 3.30pm (whichever is the earliest) to 7.00pm;
(b)During school terms in a two-week rotation commencing Term 3, 2020:
(i)In week 1 from the conclusion of school or 3.30pm (whichever is the earliest) on Thursday to the commencement of school or 9.00am (whichever is the earliest) Monday save in the event the Monday is a public holiday or non-school day then time shall be extended until the commencement of the next school day; and
(ii)In week 2 from the conclusion of school or 3.30pm (whichever is the earliest) on Thursday to the commencement of school or 9.00am (whichever is the earliest) on Friday;
(c)Commencing from the date of these orders, for one half of the term school holidays at times as may be agreed in writing (including via SMS) and failing agreement the children shall spend the first half with the Husband from the conclusion of school on the last day of term to 10.00am on the second Saturday of the holiday period;
(d)For the 2019/2020 long summer holidays on a week about basis commencing noon on 1 January 2021;
(e)From the 2020/2021 long summer school holiday period on dates and times as may be agreed and failing agreement on a week about basis commencing 1 January each year with the husband to have:
(i)The second week during 2020/2021 summer holiday period and each alternate summer holiday period thereafter;
(ii)The first week during 2021/2022 summer holiday period and each alternate summer holiday period thereafter; and
(iii)With changeover to occur at 12 noon each week unless otherwise agreed in writing (including SMS).
(f)Commencing in the year 2020, for the Christmas period being from break up of school until 1 January of each year as follows:
(i)In 2020 and each alternate year thereafter for a period of five hours on 24 December (when the children are otherwise in the care of the wife) as agreed and in default of agreement from 10.00am to 3.00pm.
(ii)In 2020 and each alternate year thereafter from 12 noon on Christmas Day to 12 noon on 1 January; and
(iii)In 2021 and each alternate year thereafter from the conclusion of school on the last day of the school year to 12 noon on Christmas Day save for a period of five (5) hours on 24 December when the children shall be in the care of the wife as agreed and in default of agreement from 10.00am to 3.00pm.
(g)In the event Father’s Day falls on a weekend when the children are not ordinarily spending time with the Husband then from 7.00pm the day before Father’s Day to the commencement of school the day after Father’s Day;
(h)On the Husband's birthday (if the children are not otherwise spending time with the husband) from:
(i)the conclusion of school on the Husband's birthday, if the Husband's birthday falls on a school day, to 10.00am or the commencement of school the following day (whichever is earlier); or
(ii)from 10.00am on the Husband's birthday, if his birthday is not a school day, to 10.00am or the commencement of school the following day (whichever is earlier).
(i)Such other times as may be agreed in writing (including via SMS).
5.The time the children spend with the Husband as set out in paragraph 4(a) and 4(b) herein shall be suspended as follows:
(a)during all school holiday periods and recommence each school term as follows:
(i)From the date of these orders until the commencement of Term 3 2020 in accordance with order 4(a)(i) herein; and
(ii)From the commencement of Term 3 2020 in accordance with order 4(b)(i) herein;
(b)In the event Mother’s Day falls on a weekend when the children are ordinarily spending time with the Husband, then the Husband’s time shall be suspended from 7.00pm on the day before Mother’s Day to the commencement of school the day after Mother's Day;
(c)On the Wife's birthday (if the children are not ordinarily spending time with the Wife) from:
(i)the conclusion of school on the Wife's birthday, if the Wife's birthday falls on a school day, to 10.00am or the commencement of school the following day (whichever is earlier); or
(ii)from 10.00am on the Wife's birthday, if his birthday is not a school day, to 10.00am or the commencement of school the following day (whichever is earlier).
(d)Such other times as may be agreed in writing (including via SMS).
6.Notwithstanding any other order herein, on each of the children's birthdays the children spend time with the parent they are not otherwise spending time with pursuant to these orders as follows:
(a)If it is a school day, from the conclusion of school until 6.00pm; and
(b)If it is not a school day, from 10.00am to 2.00pm.
7.In order to facilitate changeover when it does not occur at the children's school the parents shall meet at the IGA in [Suburb M] unless otherwise agreed in writing (including via SMS).
8.The parties be entitled to attend all extra-curricular activities and school related events including but not limited to parent-teacher interviews, assemblies, concerts, sports days and presentations that parents are normally invited to attend.
9.The parties shall both be entitled to receive copy school reports, notices, newsletters, photograph order forms and all correspondence normally provided to parents.
10.The parties shall advise each other as soon as is practicable of any significant illness and/or injury suffered by the children or either of them whilst in their respective care along with the names and contact details of any treating medical, dental and/or allied health treating practitioner so that each parent may liaise with same and in the event the children or either of them require hospitalisation then each parent shall be entitled to attend upon the hospitalised child in accordance with the hospitals usual practices.
11.The parties are not permitted to enrol the children or either of them in extracurricular activities for a period of two years unless otherwise agreed in writing (or SMS).
12.The parties shall at all times ensure that both parents are listed as emergency contacts with the children's school and any extra-curricular activities.
13.Without admitting the necessity of this order, the parties, their agents and/or servants shall be hereby restrained by way of injunction from:
(a)Assaulting, harassing, intimidating, rebuking and/or abusing the other party to and/or within the presence of the children or either of them;
(b)Discussing these proceedings and/or any evidence filed in relation to these proceedings or any associated proceedings to and/or within the hearing of the children or either of them;
(c)Knowingly permitting the children or either of them from having access to any documents or reports prepared or filed in relation to these proceedings or any associated proceedings.
14.In the event either party seeks to travel outside the State of Victoria with the children or either of them they shall:
(a)In the event of interstate travel the travelling party shall provide the other party with no less than 14 days prior written notice along with a copy of any itinerary including flight details (if any) and contact details of where the children will be staying;
(b)In the event of overseas travel:
(i)such travel shall be for no more than 14 consecutive nights commencing 2022 and each parent must not reasonably withhold consent to facilitate such extended time to permit overseas travel for up to 14 consecutive nights;
(ii)Unless by agreement shall coincide with the Victorian Gazetted school holiday period;
(iii)The travelling party shall provide the non-travelling party with no less than 30 days prior written notice of their intention to travel;
(iv)Provide copy return airline tickets to the non-travelling party no less than 7 days prior to the intended date of departure; and
(v)Provide a copy of the itinerary with such document to include the contact details of where the children will be staying during their travels and all modes of travel.
(c)The parties shall do all such acts and things necessary including signing all necessary documentation to ensure the children have valid Australian Passports with the cost of such to be share equally between the parents; and
(d)Each party shall hold one of the children's passports and shall make them available to the other parent within 48 hours of such a request for the purpose of travelling overseas and upon the children's return they shall again hold one passport each.
15.The children be permitted to travel to New Zealand with the Husband as follows:
(a)In 2021 for the period of one (1) week; and
(b)In 2022 for a period of two (2) weeks per calendar year unless otherwise agreed in writing.
16.In the event that a parent travels outside the State of Victoria the other parent may communicate with the children by telephone twice per week by agreement in writing (including text message), failing agreement each Monday and Thursday from 5.00pm to 5.30pm Melbourne time.
By orders made in Division 2 on 12 March 2021, not by consent, the children were to attend Q School unless otherwise agreed in writing. The parties had been unable to agree on parental responsibility at that time.
The mother subsequently sought a variation of the Order made 12 March 2021, for the period from about June 2021 until 31 January 2022, to allow her to relocate the residence of the children and to enrol the children in R School. The mother offered compensatory time to the father, such that the father spend time with the children from after school Friday to 6.30pm Sunday in each week during school terms (a reduction of one night a fortnight) and for ten days during Term 3 and 4 school holidays (an increase of three days in each holiday). The father opposed the mother’s application.
On 18 June 2021, it was ordered, relevantly, that:
1.Until further order and PROVIDED ALWAYS THAT the Mother lives within a 30km radius of [Q School] where the children, [Y] born […] 2010 and [X] born […] 2013 (collectively “the children”) currently attend school, the orders of 14 February 2020 remain in full force and effect save for Order 4(b).
2.In the event that the Mother chooses or is unable to reside within a 30km radius of [Q School] pursuant to order 1 hereof, the children live with the Father from after school Monday to the commencement of school Friday during school terms, and otherwise live with the Mother from after school Friday until the commencement of school Monday.
3.In the event order 2 hereof comes into effect, order 4(b) of the orders made 14 February 2020 be and is hereby suspended.
4.Until further order, each of the parties be and are hereby restrained from changing the children’s primary school enrolment from [Q School].
The mother and children remained living in Suburb M.
A small variation to the final parenting orders was made on 22 November 2022, when by consent, the parties agreed that for the father’s alternate weekend time with the children during school terms, the mother collect the children from after school on the Friday and deliver the children to the IGA in Suburb M at 5.30pm to the father.
Whilst the mother had sought sole parental responsibility for the children by application filed in April 2022, and a reduction in the father’s time with the children to three nights in each fortnight during school terms, she did not proceed with this application and sought essentially retention of the final parenting orders save as described hereafter.
ORDERS AS SOUGHT BY THE PARTIES
At the preliminary hearing, the mother sought, in her terms, that the father be restrained from making any further court appearances; every second weekend, the father drop the children off at their sports games outside the venue, and leave until the conclusion of the game, picking them up outside the venue; the father be restrained from getting the children passports and taking them to New Zealand; both parents agree to any extracurricular activities of the children; and otherwise the current orders to remain. The mother further sought at the preliminary hearing, under an oral application, to proceed with a vexatious litigant application as against the father.
At the preliminary hearing, the father sought to revisit, in his terms, the final parenting orders made 14 February 2020. He sought sole parental responsibility for the children (to ensure they attend school and extracurricular activities); that the children live with him ten nights a fortnight and otherwise spend time with the mother from after school Friday to before school Monday in each alternate week and in the other week from after school Thursday to before school Friday; that the children be enrolled in a school in the Bayside area; that the father be permitted to obtain Australian passports and take the children to New Zealand; that the children receive their COVID-19 vaccine; that the child X receive his Year 7 immunisations and the children both receive their Year 10 immunisations as part of the government immunisation program; that otherwise parenting orders of 14 February 2020 remain operative; and that the mother not be permitted to unilaterally change parenting orders.
On 17 September 2023, by way of correspondence to chambers, the Court was advised that it had been mutually agreed between the parties that the parties’ child X would move from S School to H School commencing in Term 4 2023 due to a bullying incident at S School. It was noted H School was an equal distance from both the parties homes. The Court shall give effect to this agreement by the making of a consent orders as to the school at which the child X shall attend.
MATERIAL RELIED UPON
The father relied upon the following:
(1)Amended Application for Final Orders filed 5 July 2023;
(2)his affidavits filed 6 July 2023, 3 August 2023 and 18 August 2023; and
(3)Family Report of Ms N dated 6 May 2019, annexed to his affidavit filed 6 July 2023.
The mother relied upon the following:
(1)Amended Response to Final Orders filed 11 August 2023; and
(2)her affidavits filed 11 August 2023 and 28 August 2023.
LEGAL PRINCIPLES
In Rice v Asplund, a decision of the Full Court of the then Family Court of Australia (now Division 1 of the Federal Circuit and Family Court of Australia) Evatt CJ stated the following:[1]
The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier order and to the reasons for and the material on which the orders is based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as counsel for the appellant submitted, change is an ever-present factor in human affairs. Therefore the Court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step. Some new factor arising, or at any rate, some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require a Court to consider afresh how the welfare of the children should best be served. These principles apply whether the original order was made by consent or after a contested hearing. The way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.[2]
[1] Rice v Asplund (1979) FLC 90-725 at 78,905.
[2] Rice v Asplund (1979) FLC 90-725.
Many years later, in Walden & Cooper [2020] FamCA 104, Austin J set out the current guiding legal principles, on which I proceed, as follows:
9.The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
10.The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
11.In order to determine the existence and materiality of the asserted change in circumstances, consideration should be given to (Marsden v Winch at [50]):
(a)the past circumstances, including the reasons for the original decision and the evidence upon which it was based;
(b)whether there is a likelihood of the orders being varied in a significant way as a result of a new hearing; and
(c)if there is such a likelihood, whether the asserted need for variation of the orders outweighs the potential detriment to the child or children which the fresh litigation will cause.
In Baisman & Cartmill [2022] FedCFamC1A 36 at [11], the Court stated that any change or any non-disclosed evidence from a previous proceeding must be “significant” to justify revisiting parenting arrangements.
In DL & W (2012) FLC 93-496 at [77] and Carriel & Lendrum (2015) FLC 93-640 at [56], the Court stated that in such a consideration as set out above, the Court is not required to adopt the process as set out in Goode & Goode (2006) FLC 93-286, nor is the Court required to discretely address and consider many of the s 60CC of the Act factors.
The Court was obliged to take the father’s untested evidence at its highest, unless it was inherently unreliable, the proceeding having been a discrete preliminary hearing as consented to by the parties.[3] Whilst the matter proceeded in this manner, I observe that procedural fairness was required to be, it was afforded to the parties.
[3] Walter & Walter [2016] FamCAFC 56 at [51].
EVIDENCE
Although the Court is not required to consider many of the s 60CC of the Act factors, the paramountcy principle as set out in s 60CA of the Act applies, namely, the Court must regard the best interest of the child as the paramount consideration.
The following material facts existed at the time of the making of the final parenting orders by consent in February 2020. They continued to exist at the time of the preliminary hearing:
(1)The children love their parents. The parents love their children. They have both provided devoted care to their children. The father contends that the children derive a benefit from having a relationship with both he and the mother, and that such relationships are meaningful. The mother agrees.
(2)The mother remains not in the work force and engaged in home duties which includes the primary care of the children. She remains more available to attend to the children’s needs than the father. The father continues to be engaged in the workforce full time, although not in the same capacity. Of his employment, his evidence is that it is a good job. He does not provide evidence of his income or of his employer. Clearly, he did not wish to disclose those matters to the mother. Their disputation as to monies available to each, continues.
(3)The children continue to live with the mother and spend substantial and significant time with the father. The father claims that time has been interfered with by the mother’s contravention of orders. He has at no time sought to establish, by Contravention Application, that as alleged by him. At the time of the making of the final parenting orders the father alleged disruption of his relationship with the children by the mother, and potential alienation of the children which received some support from the family report writer. The family report writer nevertheless recommended the children live with their mother. The reality is the children have a close and loving relationship with their father which has been nurtured by him, and supported by the mother, despite the parties polarised views.
(4)The parties still live in relatively close geographical proximity to each other. The mother remains living in Suburb M, after a sojourn in Town T for some months commencing in early 2021, which the mother claimed was the result of the father ceasing to pay rental payments to her. She had the offer of accommodation provided by her parents in Town T and took it. She then returned to Suburb M after the COVID-19 lockdown period. The father lives in Suburb K; after being earlier in Suburb L. These suburbs are sufficiently close to allow the parties access to their children daily if the need or circumstance dictated that necessity. That has always been the case.
(5)The children continue to have a close and loving relationship with the mother and the extended maternal side of the family. The children’s maternal grandparents live close by, and the children see them frequently either in Suburb M or in Town T. The mother’s siblings and their children are also part of that larger active close family group.
(6)The mother’s residence remains located a very short distance from the younger child’s primary school, being Q School. She and the children are “heavily involved in the [Suburb M] community and school community”.[4] The mother deposed to organising playdates with friends, picnics in the park or beach, and sleepovers with the children’s friends. The mother’s evidence was that, after school most days, she takes the children to the park to play sports. She stated “we play games together, we love to cook together, and we enjoy being outdoors and exploring new places. We have lots of fun together. I tend to their every emotional, as well as their every physical need”.[5] This engagement has been a continuum.
(7)The children also continue their close and loving relationship with the father and the father’s partner and her children. The father asserts it is a more structured household than the mother’s and is not chaotic as he claims the mother’s to be. Homework is prioritized, and the children are encouraged in an array of physical and mental activities. Whilst the paternal grandparents reside in New Zealand, and the paternal grandmother’s health precludes her from travelling to Australia, it is the father’s evidence that the children have a good relationship with them; and that contrary to the mother’s assertion that he is estranged from his mother, the father has an “exceptionally close relationship with [his] mother and speak to her at least 4-5 times per week”.[6] His further evidence is that the children “speak to both their grandparents in NZ every time [he] has them each day”.[7] These things have not changed in the last four years.
[4] Mother’s affidavit filed 11 August 2023, paragraph 93.
[5] Mother’s affidavit filed 11 August 2023, paragraph 73.
[6] Father’s affidavit filed 18 August 2023, paragraph 57.
[7] Father’s affidavit filed 18 August 2023, paragraph 57.
The father’s arguments for change
The father did not rely on a material fact not earlier disclosed. Rather, he asserted that there were new material facts of such significance that a variation to the earlier final orders is warranted, and that any detriment to the children of further litigation between their warring parents is outweighed by the need to promote their best interests in the making of further parenting orders.
School attendance
The father’s evidence was that the mother had an inability to maintain the children’s education and attendance at school. Indeed, he described the mother as “deny[ing] them an education.”[8] He claimed the children’s lack of attendance at school over the years (he included those years before he and the mother entered into the final orders by consent) had delayed both children in terms of their educational advancement and social development. The father is concerned the children will need to repeat grades as “they simply are not academically and socially where they need to be”.[9] This is his primary reason for seeking a re-visiting of the final parenting orders. He is of the view that the children residing in his household will be better supported during the school week by his schoolteacher partner and himself.
[8] Transcript 29 August 2023, p.27 line 43.
[9] Father’s affidavit filed 6 July 2023, paragraph 25.
The father deposed to numerous alleged instances of the mother withholding the children from school and/or failing to advance their educational needs which included:
·In or around early to mid-2020, the children’s primary school stated the younger child had a learning disability and needed external help. The father sought for the child to be assessed, but the mother denied the child had a learning disability and refused the father’s attempt to book the child into U Association for a literacy assessment as recommended by the child’s primary school. The mother agreed to the assessment subsequently, but it was only completed in late 2021. It identified the youngest child’s learning disability. The mother did not inform the father of the completion of this assessment, rather the father was notified via the child’s teacher.
·In or around late 2020, the mother unilaterally removed the children from their primary school and relocated to Town T because of the younger child having injured himself. The children missed multiple weeks of schooling, before returning to their primary school in Suburb M.
·On 20 October 2021, the father received an email from the mother stating the children were “a bit run down with colds”. [10] The mother accordingly did not take the children to school on Thursday or Friday (the first days back to school after lockdown).
[10] Father’s affidavit filed 6 July 2023, paragraph 6.
·On 26 October 2021, the father received a phone call from the children’s primary school principal stating the mother was not allowing the children to wear masks at school as per the government mandate. The children were provided an exemption to not wear a mask.
·On 28 October 2021, the mother sent the father an email stating “The boys have colds, and I am still on antibiotics and unwell. I don’t want to send them to school with colds and Covid around”.[11] The children missed school on 28 and 29 October 2021.
·In early November 2021, the father contacted the children’s primary school principal, and was informed that the mother was commencing to home school the children due to the mask mandate. The mother shortly thereafter also notified the father to that effect.
·On 4 November 2021, the father emailed the mother’s legal representation at the time, noting that the children had exemptions to not wear a mask to school, and disputing the mother’s decision to home school the children. He noted the school was concerned with the eldest child’s educational development, such that the child was required to attend special programs and was critical of the mother’s removal of the children from a language studies subject which he claimed isolated the children from their classmates.
·In 2022, on the father’s evidence, both children missed approximately more than sixty days of school attendance. This was more than 12 weeks. He accepted that for some of that time the children were sick, but it appears to be not in dispute that the mother home schooled the children in Town T for the entirety of Term 1 in 2022, and that the father considered that period to be an absence of learning for the children.
·On 17 February 2022, the children’s primary school principal contacted the father to outline her concerns the children were not attending school and were falling behind in the curriculum. For the father this was further evidence going to his assertion that the mother failed to home school the children adequately or at all.
·In or around April 2022, the children returned to Q School and were re-enrolled for Term 2. The younger child continues his attendance there and the older child entered secondary school this year. The father’s evidence is that both children underwent specific specialist learning programs due to the gaps in their education. The youngest child is still currently undertaking these specialist programs within the school.
·In or around May 2023, the father received two emails from the older child’s high school stating the older child was not handing in his homework. At the parent teacher interviews, the child’s teachers expressed their concerns to the father the child was far behind and was not completing his homework.
·In or around June 2023, the older child’s then high school provided the father an update as to the child’s educational progress. The father noted the correspondence outlined the child’s lack of attendance, failure to complete homework and falling behind his cohort; and
·On 16 June 2023, the older child hid his ‘learning at home’ book from the mother so that he could complete his homework with the father without his mother’s knowledge. The younger child took his school computer to the father’s home so he could complete his homework. The father and his partner assisted both children to complete their homework. The father then informed the mother of the children completing their homework. In the father’s evidence, the mother responded “they should not be doing homework”.[12]
·On 17 June 2023, the children wanted to complete their homework on the Saturday afternoon prior to returning to their mother’s home.
[11] Father’s affidavit filed 6 July 2023, paragraph 8.
[12] Father’s affidavit filed 6 July 2023, paragraph 16.
The mother’s evidence, as to any absences from school in the 2023 year, that these have been due to several illnesses experienced by the boys, including “colds, coughs, viruses and [X] had the flu”.[13] In fact, the father makes no complaint about school attendance in 2023 as confirmed by him at the preliminary hearing.
[13] Mother’s affidavit filed 11 August 2023, paragraph 63.
A further difficulty experienced within the household of both the mother and the father, was the older child’s commencement of Year 7 at S School. The mother’s evidence was that the move from his primary school had been “a huge adjustments and he had taken a while to settle in”.[14] Both parties agreed that the child was struggling academically and socially at the school, and that fact, coupled with some illnesses (not entirely explained by the mother) a lack of motivation, and possible bullying (later confirmed) greatly concerned the parties at the preliminary hearing. Indeed, they were able to reach agreement post the hearing that the child should move schools and agreed on H School.
[14] Mother’s affidavit filed 11 August 2023, paragraph 64.
The mother did not dispute that she had home schooled the children during the COVID-19 lockdown periods and on occasion otherwise, and claimed that she was in “content (sic) communication with their teachers”; [15] and that “all home schooling was completed.”[16] She claimed the children had severe anxiety during the COVID-19 periods, being surrounded by other children and teachers wearing masks, and facing the prospect of being bullied for not wearing masks. In her view, home schooling had been beneficial for the children. The mother’s evidence is that it is not only the father who is interested in their academic advancement. She considers the children’s education is “very important” and in particular her evidence was that she is well placed to promote their education as she “was [an educator] and [has] a [tertiary qualification]”.[17] The father conceded the mother had a tertiary qualification, however disputed the mother had actually worked as an educator in any meaningful way and rejected the suggestion that she “did any home learning with the boys”.[18] The mother provided evidence before the Court which indicated she had previously worked in an educator role, contrary to the assertion of the father, and albeit a long time ago.
[15] Mother’s affidavit filed 11 August 2023, paragraph 32.
[16] Mother’s affidavit filed 11 August 2023, paragraph 32.
[17] Mother’s affidavit filed 11 August 2023, paragraph 31.
[18] Father’s affidavit filed 18 August 2023, paragraph 11.
There is no doubt on the material before the Court that both children have struggled academically, although the precise cause of that is not so clear. In the period between February 2020 and the preliminary hearing in August 2023, several external factors have weighed in on the outcomes for the children. COVID-19 was a highly disruptive factor in two of these years. Home schooling was necessary and/or desirable. Social interaction and development were hindered. The mother was entitled to home school the children. The father objected. The younger child has a learning issue which has impacted his development, and the older child has transitioned into secondary school, and that has not been initially successful. The children have been cognisant of their parent’s dispute, and in particular the financial aspects of that. The mother’s evidence was that it has been exceedingly stressful for her and caused her some degree of ill health. The children have observed this. She was required to relocate to cheaper accommodation for a time. The children also relocated. The father claimed that the mother “would not even pay for [Y’s] uniform for Year 7, in fact, getting [Y] to text message me while in the shop on the last day of the Christmas school holidays, asking me to pay for the uniforms.”[19] He said of the mother “to put [Y] in that position is shocking parenting and neglectful. She, effectively, held me at ransom.”[20] This was but one example of the parents’ hostility toward each other and how it has adversely impacted their children. Again, it focused on the father’s lack of financial support for the mother and children as perceived by the mother. These are the vicissitudes of life.
[19] Transcript 29 August 2023, p.32 lines 21-23.
[20] Transcript 29 August 2023, p.32 lines 23-24.
On a consideration of all the above, one thing dominates however, and that is the children’s apparent ill health at times which has resulted in their absences from school. Those absences are unexplained to the father when he is entitled to an explanation from the mother as a function of the exercise of their equal shared parental responsibility. Given this discrete issue dispute, in my view the mother should provide to the father a medical diagnosis from a treating general practitioner. The mother appears to have been cavalier in this regard, given the children’s learning difficulties. I propose to make an order to this effect.
Extracurricular activities
The mother deposed the children had been having swimming lessons on and off but regularly since they were four years of age. The father disputed that and said that there were no swimming lessons between 2018 and the end of 2022. The mother made some concession toward the father’s position. The father wants the children to continue to have swimming lessons as he considers they are poor swimmers for their age. The mother disagrees as to their progress and states that they are competent. It was agreed that the children had been attending swimming lessons at V Centre since September 2022, as requested by the father and paid for by him. The father had wished for weekly swimming lessons to continue over winter 2023. The mother claimed the children were “continually getting sick with cold, coughs, viruses from the pool so [she] decided to cancel their swimming lessons over winter [to] start back again in October”.[21] The father then enrolled the children in Saturday lessons when they were in his care. The mother sought to cancel the lessons saying they were already playing a sport on a Saturday. The lessons did not proceed. The children, it was agreed, would resume their weekly swimming classes in October 2023 to continue over the summer months.
[21] Mother’s affidavit filed 11 August 2023, paragraph 43.
The mother is currently the Team Manager of the older child’s sports team. This is a role she very much enjoys. The sport involves training once a week and a match on a Saturday. The mother supports that regime. On occasion the mother coaches the children’s Saturday games when their coach is away. The mother claimed the father’s attendance at the children’s games has a detrimental effect upon the children. She alleged he often gave her “glaring angry looks or shak[es] his head” as a “form of intimidation…breaching the Family Violence Intervention Order” (I observe there are no breach proceedings and the father denies these allegations) and “makes things very uncomfortable for our boys”.[22] She further alleged the father’s actions at games, which included trying to coach from the sidelines, pointing his fingers and getting frustrated at the children when they play, caused stress and anxiety within the children, particularly the older child. The mother’s complaints are not supported beyond her own perception of things. The mother sought the father attend games only on those alternate weekends when the children were in his care. She suggested this would allow both parents to attend games without being in each other’s attendance. That submission, inferentially, was to the effect that the mother would not attend the matches on the father’s weekends with the children – even though she is the Team Manager of a team. This was difficult to envisage.
[22] Mother’s affidavit filed 11 August 2023, paragraph 46.
The father disputed that he had made the mother uncomfortable at games. He is focused on the children. He attends because he has generally organised and paid for the children’s participation and has regularly supported and encouraged the children’s engagement in the sport. He is present at the basketball games at the children’s requests. They want him watching them. He denied getting frustrated with the children at the games and deposed the youngest child told him “I love your encouragement from the sidelines”.[23] It is clearly in the children’s best interests that their father can engage with them in this way. The parents must put their differences aside and co-operate. The order sought by the mother in this regard will not be made.
[23] Father’s affidavit filed 18 August 2023, paragraph 23.
The father stated that the younger child has been asked to trial for representative sport and the father has paid for two practice sessions. He has offered to take the children to all practices and games at that level however the mother is not of the same opinion. So, they must, and probably can, over time, reach a consensus about this. The younger child is only 10 years. He can continue sport at a domestic level throughout next year and possibly the year after. If he remains interested and has the necessary talent; if his parents or one of them remain interested – given that they will be required to spend Friday nights driving up to two hours to and from each venue and then commit to training every Sunday during the season as not disputed by the parties – then this more intense level of competition might be engaged in by the child. The child’s views would be relevant and hopefully the Court would not have to be involved with the parties’ exercise of their equal shared parental responsibility in this discrete area.
The father also relied on the parties’ inability, as he saw it, to promote the children’s participation in another sport. He has not, however, particularly promoted that participation in those times that he has had a clear ability to, namely during his time with the boys. The mother has taken the children to some matches, and ensured they barrack for a certain team. She has organised their participation in a camp. The children’s playing of the sport will come if the parents, in their own time and of their own decision, promote it to the extent they are able. Being separated parents, living in different locations, make the arrangements more difficult, and sometimes result in a child playing in a team every second weekend. This is not something in relation to which the children’s living arrangements must change.
Vaccines
The mother refused to have the children vaccinated against COVID-19. Further she made a unilateral decision in May 2023, refusing the older child as part of his Year 7 immunisation program, to obtain immunisations for the HPV and Whooping Cough. It is not in the evidence as to why the mother refused the immunisation. In respect of the COVID-19 vaccine, it was the mother’s evidence that both children had already had COVID-19 (the father does not dispute this as he looked after them for a part of the time) and that there were too many possible adverse side effects from the vaccine for children. She gave as examples, developing heart problems of myocarditis and pericarditis. This was particularly relevant because it was the mother’s evidence that the younger child has a medical condition, and that she was advised by her doctor that the child should not be given this vaccine given it could cause serious problems and/or death. There was no corroboration of this evidence as placed before the Court by the mother.
The father, astonishingly, could not confirm nor deny whether the younger child has the medical condition. He claimed that he had “never seen a medical report starting this medical condition, nor has there been a medical report stating [the younger child] should not have the vaccine”.[24] It did not appear that he had requested one from the mother or made his own enquiries.
[24] Father’s affidavit filed 18 August 2023, paragraph 32.
The Court shall make no orders as to immunisations. If this is an issue that requires a discrete hearing in the future, there needs to be before the Court evidence directed to that issue which would include medical evidence.
New Zealand
The issue which arises on this subject is a discrete issue and I find there is a need to extend the existing orders, which made provision for the children to travel to New Zealand with their father in the 2021 and 2022 calendar years.
Order 15 of the final parenting orders is not particularly well expressed. It appears to be clear that Order 15 (b) should read “Commencing” rather than “In” as the first word in the sentence when taken in the context of the balance of the order which refers to each calendar year. The order would also then sit comfortably with Order 14 which provides for each party to travel overseas with the children for up to fourteen consecutive nights commencing in 2022. I pause there. The orders as they presently exist, unaltered, would also allow for overseas travel each year ongoing to New Zealand by either party. That travel was agreed by the parties to be in the children’s best interests at the time of their entering into final consent orders. The orders acknowledged the children’s right to have a relationship with the paternal extended family. Such travel has not occurred due to COVID-19, at least in 2021. No intervening factual event has occurred which represents a material change of circumstances. The mother now objects to such travel to New Zealand on the basis that the father will fail to return the children to Australia. That position is not supported by the evidence.
The father commencing to live with his long-term partner and her two children here in Australia, is a changed circumstance that would indicate the father is intent on remaining in Australia. The father has already been residing and working in Australia for approximately 21 years.
The father has, on his evidence, no interest in removing the residence of the children from Australia to New Zealand; he has not threatened the mother that he would do so; and his life, family, job and friends are all in Australia. There is no reason for him to relocate to New Zealand. The children are also happy in Australia and would not express a wish to relocate to New Zealand.
The further basis on which the mother now opposed such travel was that she would “stress and worry” and be extremely concerned about how the children are “going to be cared for and looked after”.[25] There is no basis for the mother to be so concerned. It is likely the father would take his partner with him to New Zealand. Whilst the mother has never met the father’s partner, during the preliminary hearing the mother described her as “a nice, kind person” and did so based on the children reporting (of the care she provides to the children) to her.[26] The mother is “extremely grateful” for that care. Even if however, the father travelled alone with the children, they would be well cared for.
[25] Transcript 29 August 2023, p.13, lines 26 – 29.
[26] Transcript 29 August 2023, p.69 line 10.
The mother’s subjective stress and worry also does not outweigh the benefit to the children of their exposure to their father’s extended family, including the paternal grandparents, and to their New Zealand heritage.
The mother made clear her objection to co-operating in the process of obtaining a passport for the children. This was despite the orders providing for both parents to have an opportunity to take their children overseas to any location. So as not to delay this process, nor invite further argument between the parties, I shall order that the father obtain the passports and pay the costs of same. He can then be the holder of the passports. He is not a flight risk.
Other
Final parenting orders have been in place since 14 February 2020. Both parties made further complaint about the care of the children in the other’s household. Those complaints went to matters of preference, matters of financial constraint, and other perceived dissatisfaction of the standard of care provided by the other parent. None of these complaints were of the necessary significance. The father alleged numerous breaches by the mother of her obligations under the orders going back to 2020. His remedy was then, and is into the future, to bring a Contravention Application.
CONCLUSION
For the reasons stated above, the father’ application for further parenting orders under Part VII of the Act is dismissed. There is no material change in circumstances, either singularly or as a whole, to justify such a serious step as re-visiting the existing final parenting orders made in February 2020.
VEXATIOUS LITIGANT APPLICATION
The mother, at the preliminary hearing, orally sought an order that the father was a vexatious litigant. She claimed he had engaged in behaviour which indicated coercive control and continued to file material which she claimed to “have continual lies and exaggeration and hold very little substance”.[27]
[27] Mother’s affidavit filed 11 August 2023, paragraph 97.
As was stated in Attorney-General v Altaranesi [2013] NSWSC 63 at [19], the question of whether proceedings are without reasonable grounds is one which must be gauged objectively and not from the perspective of the litigant. The provision is concerned with effect and consequence rather than motive and design, but on any view, those proceedings must be more than lacking success; they must be seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment.
Section 102QB of the Act applies if the Court is satisfied a person has frequently instituted or conducted vexatious proceedings in a court. It is conceivable that a small and limited number of proceedings could fall within the definition of “frequently instituted” if they were an attempt to relitigate or get around an issue that had already been determined.
Section 102Q of the Act provides a definition of vexatious proceeding as follows:
“vexatious proceedings” includes:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Relevantly, s 102QB(1) of the Act is as follows:
(1)This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
Section 102QB(4) of the Act is as follows:
The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
The mother was requested by the Court to provide particulars of the basis on which she sought such an order but failed to provide such information. Nor did she provide any further evidence to support such an application.
The mother, in seeking to proceeding with an oral application, unsupported by precise particulars and evidence in the context of a preliminary enquiry as to changed circumstances of the nature that would satisfy the Rice & Asplund test, proceeded inappropriately. The Court could not be satisfied that the father was afforded procedural fairness. Section 102QB(4) of the Act would not have been satisfied. Accordingly, such application is dismissed.
Further, I note for the benefit of the parties and to avoid further litigation between them that the father has not “frequently instituted” proceedings to the degree necessary and nor has he exceeded those instituted by the mother. Further, the material raised by him in this proceeding would not appear to satisfy the definition of “vexatious proceedings”.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 17 October 2023
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