Bolton & Verrender (No 2)

Case [2023] FedCFamC1F 1044

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bolton & Verrender (No 2) [2023] FedCFamC1F 1044

File number: MLC 1288 of 2016
Judgment of: MCNAB J
Date of judgment: 7 December 2023
Catchwords: FAMILY LAW – PARENTING – PROCEDURE – Contravention & Contempt Applications – Where the father has previously made and subsequently withdrawn contravention and contempt applications against the mother – Where the father seeks an amendment to final orders – Where the father’s application largely seeks to reagitate matters which occurred prior to the orders being made in 2018 (varied by consent in 2019)and orders made in 2022 – Where the father seeks an order that the parent with the care of the child ensure that the child attend extra-curricular activities whilst the child is in their care including activities not arranged by that parent – Where the father has not complied with orders of service as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) – Where the alleged charges are not properly particularised either in the application for contempt or in the affidavits filed by the father in support of the applications – Where the matters alleged are not of the singular kind required in order to justify an application for contempt – Where the father was on notice of these matters as a result of the terms of the 2022 judgment – Where it is not in the best interests of justice for these proceedings to be re-opened – Where the father’s application is dismissed.
Legislation:

Family Law Act 1975 (Cth), ss 64B(2)(g), 112AD, 112AP

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 11.71

Education and Training Reform Act2006 (Vic), Pt 2.1
Cases cited:

Bolton & Verrender [2022] FedCFamC1F 550;

In the Marriage of Rice, MA and Asplund, CJ (1979) FLC 90-725; [1978] FamCA 84

Marsden & Winch [2009] FamCAFC 152

Reid & Lynch [2010] FamCAFC 184

SPS & PLS [2008] FamCAFC 16

Watson & Watson [2018] FCCA 1791

Wynn & Danilov [2023] FedCFamC1A 149
Division: Division 1 First Instance
Number of paragraphs: 63
Date of last submission/s: 5 December 2023
Date of hearing: 5 December 2023
Place: Melbourne
The Applicant: Appeared in person
Counsel for the Respondent: Ms Wiener
Solicitor for the Respondent: Bayside Solicitors

ORDERS

MLC 1288 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BOLTON

Applicant
AND:

MS VERRENDER

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

7 DECEMBER 2023

THE COURT ORDERS THAT:

1.All extant applications filed in the proceeding be dismissed.

2.Pursuant to Section 64B(2)(g) of the Family Law Act 1975 (Cth) (“the Act”) the father be restrained from making any application under Part VII of the Act in relation to the child X born 2014 (“the child”) without first making an ex-parte application seeking and obtaining leave from a Judge in Division 1 of this Court and for that purpose:

(a)the father must file an application setting out the…

Continue reading Bolton & Verrender (No 2)

Sign in free to access the full text

Details
AGLC
Bolton & Verrender (No 2) [2023] FedCFamC1F 1044
Case
[2023] FedCFamC1F 1044
Decision Date

CaseChat Overview and Summary

In the case of Mr Bolton v Ms Verrender, the Federal Circuit and Family Court of Australia (Division 1) dealt with a dispute between the parents regarding the parenting arrangements for their child, X. The primary concern was Mr Bolton's application to amend the final orders made in 2018, which were subsequently varied by consent in 2019. Mr Bolton sought an order for the parent with the care of the child to ensure the child attends extra-curricular activities while in their care, including activities not arranged by that parent. This application came after previous contravention and contempt applications by Mr Bolton against Ms Verrender had been withdrawn.

The court was required to determine whether it was in the best interests of the child to reopen the litigation, given that Mr Bolton had not complied with the orders of service as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Additionally, the court needed to assess whether the alleged charges were properly particularised and whether the matters alleged justified an application for contempt. The court also considered whether it was in the best interests of justice to reopen the proceedings, given the father's conduct and the way he had conducted himself in the course of the hearing.

The court concluded that it was not in the best interests of the child to reopen the litigation. Mr Bolton had been on notice from the reasons for judgment of Bennett J that an application for contempt should not be made lightly and is only applicable in the most extreme cases. The court found that Mr Bolton had repeatedly sought to reagitate matters which had occurred well before the making of the orders in 2018. The court restrained Mr Bolton from making any application under Part VII of the Family Law Act 1975 (Cth) in relation to the child without first making an ex-parte application seeking and obtaining leave from a Judge in Division 1 of the Court. The court also ordered Mr Bolton to pay Ms Verrender's costs of $5000, with the payment of such costs to be stayed for 90 days.

In conclusion, the court dismissed all extant applications filed in the proceeding and restrained Mr Bolton from making further applications without leave from the court. The decision underscores the importance of considering the best interests of the child and the need for parties to adhere to the legal processes and comply with court orders.

Orders

Orders of the court

MLC 1288 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BOLTON

Applicant

AND:

MS VERRENDER

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

7 DECEMBER 2023

THE COURT ORDERS THAT:

1. All extant applications filed in the proceeding be dismissed.

2. Pursuant to Section 64B(2)(g) of the Family Law Act 1975 (Cth) (“the Act”) the father be restrained from making any application under Part VII of the Act in relation to the child X born 2014 (“the child”) without first making an ex-parte application seeking and obtaining leave from a Judge in Division 1 of this Court and for that purpose:

(a) the father must file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking these orders; and

(b) unless otherwise ordered such application is not to be served on the mother or any other person.

3. The Applicant father pay the Respondent mother’s costs fixed in the sum of $5000, with the payment of such costs to be stayed for 90 days.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In respect of a second request for the child to attend family events in New Zealand, the mother has apparently agreed to the child attending these events, notwithstanding that they fall within school time. The father is objecting to the mother having extra time to make up that time spent with the father in New Zealand. Given the amount of time that the child will be spending with the father on those occasions I do not see that that is unreasonable and is certainly not a reason for reopening the litigation.CONCLUSION Having regard to all material filed by the father, which I have read and had regard to, it is not in the best interests of the child, X, for the proceeding to be reopened. I will make orders pursuant to s 64B(2)(g) of the Family Law Act 1975 (Cth) (“the Act”) requiring or providing that the father be restrained from making any application under Pt VII of the Act in relation to the child, X, without first making an ex parte application seeking and obtaining leave from a judge in Division 1 of this Court, and for that purpose, the father must file an application setting out the specific orders sought and an affidavit setting out the evidence and the reasons for seeking those orders, and unless otherwise ordered, such application is not to be served on the mother or any other person. If a further application is to be made, that is to be done without involving the mother having to deal with it, and the Court can look at it and see whether there is a basis for it. The reason I do this is because the father has been on notice as a result of the reasons for judgment of Bennett J that an application for contempt should not be made lightly, and it is only in the most extreme cases that it applies. That was not the case before Bennett J and that is not the case here. The father’s conduct and the way he has conducted himself in the course of the hearing where he has repeatedly sought to reagitate matters which have occurred well before the making of the orders in 2018 indicates he has not read and considered the clear statements made by Bennett J. He was put on notice by the reasons of Bennett J at [31] which extracted parts of the Family Report where the Family Report Writer detailed matters of concern to that expert:31The family was assessed on 22 November 2021 on the Microsoft Teams platform. The Child Court Expert, [Ms Z] found:-71.[Mr Bolton] detailed his role in the current dispute as minimal, responding and actioning the current matter out of necessity to ensure that [X] has fair arrangements and that – due to a concern that [Ms Verrender’s] mental health impacts her parenting capacity. Notwithstanding his coparenting experience, it appears that [Mr Bolton] struggles to identify his role in the conflict, communicating more than a reasonable amount with [Ms Verrender], seeking evidence to prove his parenting capacity over hers, being inflexible to slight changes to the order and having reduced insight into [Ms Verrender’s] lived experience of family violence and how it impacts her coparenting capacity. As such, it would be prudent for [Mr Bolton] to refocus his lens and consider how making allegations about [Ms Verrender’s] poor mental health and reduced parenting capacity in contrast to any assessment made by DFFH impacts her ability to parent [X] and be an amicable co-parent. Additionally, [Mr Bolton] continually cited [Ms Verrender’s] unwillingness to engage in family therapy with specialist, [Ms F], as evidence of her poor co-parenting capacity. Again it would be prudent for [Mr Bolton] to consider how sessions might be difficult for [Ms Verrender] to engage in authentically and without fear, given her lived experience of family violence and experiences of alleged systems abuse, and to support [Ms Verrender] as [X’s] other parent by allowing her to independently manage her own engagement with specialists or mental health professionals.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.