Barr & Barr (No 3)

Case [2023] FedCFamC1F 873

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…

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AGLC
Barr & Barr (No 3) [2023] FedCFamC1F 873
Case
[2023] FedCFamC1F 873
Decision Date

CaseChat Overview and Summary

The case of Barr & Barr (No 3) involved the parents, Mr Barr and Ms Barr, who were engaged in a contentious dispute over parenting arrangements for their children, Y and X. The father sought to vary the existing final parenting orders, requesting sole parental responsibility, a change in the children's residence to live with him, and alterations to their schooling. He also sought a passport and travel order permitting the children to travel with him to New Zealand. The mother opposed these changes and filed a vexatious litigant application against the father. The Federal Circuit and Family Court of Australia had to determine whether there had been a significant change in circumstances justifying the alteration of the existing parenting orders and whether the father was a vexatious litigant.

The court assessed the father's application under the paramountcy principle, considering the best interests of the children as outlined in section 60CA of the Family Law Act 1975. The court noted that there had been no significant change in circumstances since the final parenting orders were made in February 2020. The children had close and loving relationships with both parents, and the geographical proximity of the parents allowed for easy access. The court also dismissed the mother's vexatious litigant application, finding that the father's proceedings were not without reasonable grounds, burdensome, or damaging.

The court concluded that there was no material change in circumstances to warrant a change to the existing final parenting orders. However, the father was permitted to travel to New Zealand with the children annually for up to two weeks starting in 2024. Additionally, the father was granted possession of the children's passports, and the mother was required to ensure the children attended school unless a medical certificate was provided. The mother's vexatious litigant application was dismissed, and all other applications were dismissed, with the matter removed from the list.

The court's final orders included the children attending their current school, the father retaining possession of the children's passports, and permitting the children to travel to New Zealand with the father annually. The mother was required to ensure the children attended school unless a medical certificate was provided. The mother's vexatious litigant application and all other applications were dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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