Bolton & Verrender (No 2)
[2023] FedCFamC1F 1044
•7 December 2023
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– PARENTING – PROCEDURE – Contravention & Contempt Applications – Where the father has previously made and subsequently withdrawn contravention and contempt applications against the mother – Where the father seeks an amendment to final orders – Where the father’s application largely seeks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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bolton & Verrender has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX-TEMPOREMCNAB J:
BACKGROUND
On 29 August 2018, Carew J made final parenting orders in relation to X born 2014. These orders were varied by consent in April 2019. I will refer to the 2018 orders varied in 2019 as the “2019 orders”.
As a result of applications alleging contravention of the 2019 orders and subsequent applications being made by the father that the mother be dealt with for contempt (which application for contempt was heard and dismissed by Bennett J by orders made on 22 March 2022) further parenting orders were made on 22 March 2022, and I will refer to them as the “2022 orders”.
The 2022 orders provide for joint parental responsibility, that the child live with the mother and spend five nights per fortnight with the father. Those orders were made after the Court obtained a report from a Child Court Expert and received oral evidence and recommendations from that expert. Orders were made after arrangements for the child to spend six nights per fortnight with the father were trialled and assessed by the Child Court Expert, after she had spoken to the child about those arrangements (see Bolton & Verrender [2022] FedCFamC1F 550 at [31] (“the 2022 judgment”).
At [26] – [28] of the 2022 judgment, Bennett J emphasised the distinction between an application alleging contravention of an order and a contempt application, with the latter involving an allegation of a flagrant challenge to the authority of the Court. The father withdrew his contempt application in the 2022 proceedings.
Bennett J also recorded at paragraph 3 of her reasons for judgment the following observations about the parties:
3 My experience of the parties is that:
(a)Their actions and reactions tend to the extreme end of the spectrum and are disproportionate to the matter at hand;
(b) Each parent appears to think that the end justifies the means;
(c)The parents do not pay due regard to [X’s] interest or the emotional impact on him of his/her actions;
(d)The parents are consumed with his/her own emotional needs which, for the mother, is to exclude the father from her life and, for the father, to insert himself into the mother family life including her siblings;
(e)The parents are inconsiderate of the drain of resources that they cause to agencies such as Victoria Police, State Magistrates’ Courts within the FVIO jurisdiction and this Court;
(f)Their actions and reactions warrant firm censure but it is only a matter of time before the victim of poor behaviour in one dispute becomes the perpetrator in the next dispute.
Plainly, her Honour believed that the problems that the parents experience in parenting their child was not attributed to one party only. On 8 August 2023, the father filed a contempt application alleging 15 breaches of orders which were said to constitute contempt. By way of example, the details of the alleged contempt grounds 1, 2 and 5 are as follows (typographical errors removed):
Details of Alleged contempt - 1
Date Time Place
30/6/22 5:12 pm [U Street] [Suburb P]
Statement of Alleged contempt
In respect to orders issued 22nd March 2022 at clause 20 a. the Respondent Denigrated the Applicant in the presence of [X].
Details of Alleged contempt – 2
Date Time Place
30/6/22 5:12pm [U Street] [Suburb P]
Statement of the Alleged contempt
In respect to orders issued 22nd March 2022 at clause 20 b. the Respondent involved [X] in a dispute
Details of Alleged contempt – 5
Date Time Place
11/7/22 3:30pm [V Street] [Suburb P]
Statement of the Alleged contempt
In respect to orders issued 22nd March 2022 at clause 20 b. the Respondent involved [X] in a dispute
I have not set out all the grounds alleged but that is the flavour of the allegations that are made in relation to the grounds for contempt.
On 17 August 2023 the father filed an Application for Final Parenting Orders wherein he sought, amongst other things, orders that:
(a)the 2022 orders be discharged in part;
(b)the child spend eight consecutive nights per fortnight with him;
(c)changes to arrangements over Christmas;
(d)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 (and whilst not expressed in the orders but made plain in submissions) including activities not arranged by that parent.
In his affidavit submissions the father made plain that he wanted the child to attend training on days when the child was in the care of the mother.
By a further application filed on 6 October 2023 the father alleged four further grounds of contempt. The details of each contempt are (copied exactly):
Details of the Alleged contempt – 1
Date 22/9/23 Time 1.14pm Place [U Street] [Suburb P]
Statement of the Alleged contempt
In respect of orders issued 22nd March 2022 at clause 4 j. the Respondent refused to additional time with [X] for a major family event
Details of Alleged contempt – 2
Date 30/9/23 Time 5pm Place [U Street] [Suburb P]
Statement of the Alleged contempt
In respect of orders issued 22nd March 2022 at clause 10. the Respondent failed to comply with orders for telephone communication or audio visual communication
Details of Alleged contempt – 3
Date 30/9/23 Time 5pm Place [U Street] [Suburb P]
Statement of the Alleged contempt
In respect of orders issued 22nd March 2022 at clause 20.c., The Respondent committed family violence
Details of Alleged contempt – 4
Date 3/10/23 Time 5pm Place [U Street] [Suburb P]
Statement of the Alleged contempt
Failed to comply with disclosure
In Wynn & Danilov [2023] FedCFamC1A 149 (Aldridge, Harper and Brasch JJ) at [68] the Full Court stated:
An application for contempt pursuant to s 112AP of the Act invokes a criminal procedure which imposes strict requirements for personal service, precise particularisation of the alleged charge and proof beyond reasonable doubt. The procedures set out in the Rules demonstrates why the charge must be adequately particularised. Rule 11.71(2) requires such an application to provide particulars of the alleged contempt supported by affidavit evidence. The Court must cause the alleged contemnor to be orally informed of the charge and must call upon him or her to plead to it, hear the evidence in support then either dismiss the charge or move to hear evidence in defence (r 11.71(6) and r 11.71(7) of the Rules).
Further, at [70] of that decision the Full Court stated:
In Ganem & Ganem (No 2) [2013] FamCA 257, Aldridge J explained the relevant principles as follows:
10.Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate [2002] FamCA 356; (2002) 29 Fam LR 195;(2002) FLC 93 107)
11.Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:
•The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93 267 at 80, 536)
•The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91 729 at 75, 294)
•The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend to do the act which is alleged to be the contempt. In the Marriage of English, above.
•The act must involve a flagrant challenge to the authority of the court. In Bande and Cade 45 FAM LR 376 at 39 the Full Court said:
The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen [1994] FamCA 103; (1965) 18 Fam LR 164; (1994) FLC 92 – 496 the Full Court held (at Fam LR 175; FLR 81, 162): “the use of the term “flagrant challenge” ... is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as a general run of breaches which are intended to be dealt with under section 112AD ... it is a question of fact and degree whether the stringent terms of the section are satisfied.
At [71] of that decision the Full Court stated:
The extremity of a finding of contempt as a remedy is revealed by the principle that the power to convict for contempt should be “sparingly used and jealously watched” and “exercised only in rare cases when there is no other remedy to preserve the dignity of the Court and protect the public” (M & M (1990) FLC 92-106 at 77,709).
There is no evidence that the respondent mother has been personally served with the application as required by the Rules: see r 11.71 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Further, the alleged charges or grounds of contempt are not properly particularised either in the application for contempt or in the affidavits filed by the father in support of the applications.
The matters alleged are not of the singular kind required in order to justify an application for contempt. The father was on notice of this requirement as a result of the terms of the 2022 judgment.
In particular, at [27]–[28] of those reasons Bennett J stated:
27The meaning of the term “flagrant challenge” was considered by Fogarty, Baker and McGovern JJ in Ibbotson & Wincen (1994) FLC 91-496 and later affirmed by the Full Court comprising Alstergren CJ, Strickland & Macmillan JJ in Oakely & Millar [2019] FamCAFC 12 (at 81,162) as follows:
The use of the term “flagrant challenge”… is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s 112AD… it is a question of fact and degree whether the stringent terms of s112AP(1)(b) are satisfied…
28A contempt application is a serious application that must amount to behaviour which one could reasonably consider to be a flagrant disregard for the orders. The matters alleged are not striking or exceptional contraventions. Sensibly, the father does not wish to proceed with the contempt application.[1]
(Emphasis added)
[1]Bolton & Verrender [2022] FedCFamC1F 550.
The matters alleged are not striking or exceptional contraventions and sensibly the father does not wish to proceed with the contempt application. I do not see that there is any material difference in the matters that were raised by the father in that earlier application and the application he has made today, and therefore I dismiss the application for contempt.
On 8 November 2023 orders were made by Alstergren CJ transferring the father’s applications to Division 1 of the Court and listing the matter for a Rice & Asplund threshold hearing on 5 – 8 December 2023. The matter came before the Court on 5 December 2023 where the father was self-represented, and the mother was represented by counsel.
Application of Rice & Asplund
The applicable law in this matter is the rule as set out in In the Marriage of Rice, MA and Asplund, CJ (1979) FLC 90-725 (“Rice & Asplund”). In this case Evatt CJ said at [7]:
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 that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, 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 …
In applying these principles as set out in Rice & Asplund, the Court in this case must give consideration to the following:
(a)the circumstances at the time of the making of the Final Orders in 2022, having regard to those earlier orders and the reasons for and material on which that order was based;
(b)whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing; and
(c)if there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation:
In SPS & PLS [2008] FamCAFC 16 (“SPS & PLS”), Warrick J said at [48] that the rule in Rice & Asplund is “merely a manifestation of the best interest’s principle”.
In Reid & Lynch [2010] FamCAFC 184, at [20]–[22], the Full Court said that:
20.In relation to the first of those categories, and again as O’Ryan J explains, s 65D(2) of the Family Law Act 1975 (Cth) (“the Act”) empowers a court to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order, but in exercising such a power the best interests of the child in question are the paramount consideration (as was recognised by Neville FM in paragraph 33 of his reasons).
21.However, as O’Ryan J also explains by reference to the various authorities which he cites, a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment, unless the court can be satisfied that there is some changed circumstance which would justify such a serious step, or some fact which was not previously disclosed which would have been material in the making of the orders.
22.I would also in this context refer to the observations of McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172 at 118 (albeit made in the context of the admission of further evidence on appeals in parenting cases) that the “important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.”
See also Watson & Watson [2018] FCCA 1791 at [369] per Judge Kelly, where His Honour set out a detailed analysis of the rule and its application.
The Court must also consider Marsden & Winch [2009] FamCAFC 152 (“Marsden”) and whether a variation to the current orders would benefit the child more than the disruption and emotional harm likely to be caused to them by re-litigation.
In Marsden the Court stated at [48] that:
… there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
Further, as was found in Marsden at [47] in circumstances where the Court has been asked to determine this matter at a preliminary stage, the following principals apply:
(citing Warnick J in SPS & PLS at [81]):
... when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination ‘on the merits’. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
In applying these principles, the Court in this case gives consideration to the circumstances in which the orders were made in 2022.
In support of his application for a variation of the 2022 orders the father relied upon a trial affidavit sworn 20 November 2023 and an affidavit in response filed 29 November 2023. The father filed a Further Amended Initiating Application on 20 November 2023. That was in similar terms to the application that he filed on 17 August 2023 with the central variation being an application for there to be equal shared time between the parents. The father’s affidavit of 20 November 2023 provides at paragraph 5:
5.I make this application reluctantly but have been left no choice but do so halving [sic] regard to the Respondents:
(a) ongoing refusal to put [X’s] interest first
(b) ongoing acts of Family violence and involvement of [X]
(c)flagrant ongoing disregard of court orders and continued contraventions of same.
(d) ongoing attitude and behaviour towards me
(e) the Respondents refusal to follow orders for mediation.
The father makes a submission that the child would benefit from spending seven nights per fortnight with each parent. Turning to the father’s commentary on the grounds that he relies upon, at paragraph 7 of his affidavit of 20 November 2023, the father sets out the reasons why he considers it is in the best interests of the child to commence with a seven-day week-about structure:
7.It would be in the best interests of [X] to commence a 7 day week about structure for the following reasons:
(a)[X] would benefit from a stable routine that could be managed better across a longer period
(b) [X] would have more opportunity to undertake extracurricular activities such as Sports, swimming, social outlines, play dates with his friends, family get togethers’, [music] lessons and the like
(c)he would be less exposed to the Respondents negative attitude, behaviour, menta health and the issues that she appears to continue to struggle with arriving from our separation
(d)I would still actively seek to work with the Respondent to ensure that decision making with respect to [X’s] long term care, welfare and development is mutual and cooperatively [sic]
(e)my relationship with [X] would continue to grow and prosper in a positive manner
(f)the Respondent would be less able to obstruct it and /or seek to undermine it now and in the future as she has done
(g)[X’s] needs would be prioritised over mine or the Respondents
(h)[X] would continue to have a close and meaningful relationship with the Respondent which I would continue to foster and facilitate
(i)[X] would continue to have the same relationship with all members of his extended family
(j)there is less risk of the Respondent continuing to contravene the orders and the need to enter into ongoing litigation would be removed
(k)A change to the orders is in [X’s] best interests
The evidence that has been put forward by the father in support of an application for equal time does not warrant setting aside the orders made in 2022. In large part the father’s application seeks to reagitate matters which occurred prior to the orders being made in 2018 and the 2022 orders. In the course of the hearing of his application the father repeatedly sought to refer to evidence going as far back as 2016 and he was directed to focus his attention on matters that had arisen since the 2022 orders were made but he had great difficulty doing so. None of the matters that have been raised by the father in relation the benefits of equal time justify reopening the orders.
At paragraphs 183–197 of his affidavit of 20 November 2023, the father cavils with the 2022 orders however he never appealed those orders. Much of the affidavit is taken up with assertions in relation to the mother but there is very little evidence given to support those assertions. For instance at paragraphs 8–10 the father states:
8.Since the order made 22nd March 2023 the Respondent has not sought assistance to improve her mental health.
9.The respondents mental health has detreated [sic] since making the Orders in March 2022.
10.This is affecting [X].
The father states that the mother has issues in relation to her mental health and that she has failed to address those issues. The matters that the father raises in relation to the mother’s mental health are simply assertions made without evidence and there is no evidence before the Court that the mother’s mental health has deteriorated or that there is sufficient evidence before the Court to reopen the case on that basis.
No medical evidence has been placed before the Court by the father in relation to mental health issues and there are no examples provided which might provide a foundation for a finding that there has been a deterioration in mental health such that this needs to be addressed in orders. Furthermore, the father makes allegations in relation to the mother’s mental health where he is at the same time pressing for orders to be made that the child spend equal time in each parent’s care.
Turning to the next ground for setting aside the orders. The father raises that the mother has failed to engage in mediation. He states at paragraph 13 of his affidavit filed 20 November 2023:
13.On 31/10/22 I sent the Respondent a message via the talking parents app and said:
“Dear [mother]
Would you be willing to try some mediation thru […] (or someone you wish to recommend) to try to find some common ground so we can try to get along for the benefit of [X]”?
14. The Respondent replied:
“Dear [father]
Thank you but I believe that ship has sailed. I have nothing to say to you”.
15. I then replied back:
“I was just once more trying to have some peace with you and get off this path that you insisted we go down”.
16. No response was received back.
At paragraph 90 of his affidavit filed 20 November 2023 and under the heading ‘Mediation and the like’ he cites Order 21 of the orders of 22 March 2022 which provides:
The parties attend upon [Organisation N] to see a Senior Family Dispute Resolution Practitioner with a social science background in relation to any disagreement they may have in relation to equal shared parental responsibility. The Father be responsible for the costs for the attendance upon the family therapist.
That order was not contemplated to deal with every issue that might arise between the parties involving the care of the child, as such would involve the parties very regularly engaging in mediation or therapy through N Organisation, which I do not think is a reasonable inference to draw. That order is really directed at dealing with matters of parental responsibility that arise involving long-term health, religion and education.
In relation to schooling, the child is presently in Grade 2 going into Grade 3 in primary school. The father wishes to send the child to a local high school for his high school education. The mother has not indicated that she has any issue with that. The father made submissions that he wished to deal with that by way an order effectively to pre-empt a conflict about that. There is insufficient evidence before the Court that there is any particular conflict at this point which would require the parties to attend mediation or therapy pursuant to the terms of that order.
I do not understand there to be any significant issues regarding religion, and I deal with matters of health subsequently below.
The father raises issues about extracurricular activities that the child is engaged in, often at the initiation of the father. His concern is that when events involving the child arise during the mother’s time, the mother is not facilitating that time, so as to enable the child to enjoy those activities to the full. The father gives evidence that he is raising these matters with the mother and getting no response. Whilst the father is frustrated at the mother’s failure to respond, that is not a matter that requires a further Court hearing, and those matters can be dealt with by applying the orders in place.
If the father has arranged some activity, which the child enjoys and gets a benefit from, I presume that each parent will facilitate that to occur. There has to be a balance to be struck and the parents should avoid arranging activities that fall within the other parent’s time, if there is no agreement. I do not understand why a change to the orders will assist the parents in dealing with issues about extracurricular activities. Order 20 of the orders of 22 March 2022 provides that each parent can attend extracurricular activities in the following terms:
The Mother and the Father be permitted to attend extra-curricular and like activities routinely attended by parents, including but not limited to parent-teacher interviews, functions, concerts and sporting events.
The fact that the mother has not responded to texts where photos of the child participating in events have been sent to her does not constitute a breach of any order or form part of a reason to reopen this litigation.
The mother’s failure to respond appears to be based on her lack of interest in communicating with the father. I would encourage the mother to communicate with the father about extracurricular events, but I do not believe it is in the interests of the child for the matter to be re-litigated in relation to this issue. This matter is a source of frustration for the father but that is not sufficient to involve the child in further litigation.
In relation to extracurricular activities, I note that the recommendations referred to in paragraph 83 of the father’s affidavit:
83. During the proceedings in March 2022 the child expert recommended that:
‘[X] to be enrolled in extracurricular activities, that provides opportunity for consistency, e.g. if an activity that requires training and game days, to occur during his live with arrangements. If an activity that requires a weekly commitment of one session, during the spend time, to be facilitated by [Mr Bolton]’.
These recommendations are not orders of the Court.
The father also raises family violence as a basis for setting aside the orders and re-litigating the matter. The father contends that ongoing family violence perpetrated by the mother is a reason to re-opening these proceedings. Each of the parties have applied for family violence intervention orders against each other but those applications and the orders made address concerns about those issues, and I do not understand why this Court embarking on an investigation of those allegations is in the best interests of the child.
Regarding the child’s health, apart from the child having a medical emergency arising from appendicitis, there is no evidence from any medical practitioner which suggests a finding that his health is such to require an amendment to existing orders. The father raises issues about dental appointments and ‘flu shots. However, he has arranged for the child to attend medical appointments.
The father has raised issues regarding events on 21 November 2023 in relation to a medical emergency arising from appendicitis.
The mother did communicate the fact of the emergency, but could have been clearer in her communications, for instance, stating which W Hospital the child was at and making arrangements for the child to see his father in a timely way. However, that failure is not a reason for re-opening the proceeding. Orders 17 and 18 of the 2022 orders adequately address those issues. Those orders are, relevantly:
17.The Mother and the Father immediately inform the other of any serious illness or injury sustained by [the child], and provide particulars of any treatment received by him and the name and address of the treatment provider/s and/or location at which he is a patient.
18.The Mother and the Father each authorise and direct all current and future medical and health practitioners treating [the child] to provide both parties with all information as to his attendances and/or treatment at their own request and cost.
The father raises at paragraph 168 of his affidavit, that there have been:
… some troubles at School and there are concerns with his teacher on his behaviour.
and at paragraph 169 that the child “has shown some bullying tendencies.” Again, this is not a reason to reopen the case. It is a matter for the parents, either individually or jointly, to speak to the school and the child and to try and address any issues at the school that arise for the child. The orders, as presently formulated, address this.
Similarly, changes to the father’s employment is not a reason to reopen the case. There is insufficient evidence provided by the father as to when these changes occurred and whether they were in place when the orders were made in 2022 or not.
The matters raised by the father at paragraphs 175 to 182 of his affidavit are not sufficient to justify a change to the orders. Otherwise, the father has raised in his affidavit material and in submissions before the Court that he wished to cavil with the 2022 orders on the basis that the matters were not assessed in that proceeding as they ought to have been. In particular, he raised the issue of what he regards as the mother’s dishonesty in Court proceedings in 2016, involving applications for intervention orders which were dealt with in the Magistrates Court, which he states were not sufficiently taken into account. Again, as I noted earlier, he has not appealed those orders. Furthermore, there is no proper basis for reopening a case in order to deal with matters that occurred prior to the orders being made in 2018.
As to the balance of matters raised around extracurricular activities again, they are matters that deal with events in 2017, none of which are relevant to this application.
A further matter raised is that it is put that the mother has failed to follow order 4 of the 2022 orders and, in particular, order 4 that the child spend time and communicate with the father, in particular order 4(j) which provides:
At other times, as agreed in writing, with the parties to give reasonable consideration to any request for additional time for the child to attend family functions and/or events.
The father refers to family events involving the child that he sought to arrange in New Zealand, which were during the school term. The mother did not agree to those arrangements on the basis they were in the school term, and it would be detrimental to the child to miss school. There is no failure on the part of the mother, in that instance, to give reasonable consideration because the points that she raises about the requirements for the child to attend school are perfectly reasonable, having regard to the legislation that applies, requiring children to attend school, in particular, Pt 2.1 of Education and Training Reform Act2006 (Vic), which I raised with the parties at the hearing on 5 December 2023.
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.
And at [33] her Honour Bennett J stated:
33.It is abundantly clear from the evidence of the Child Court Expert that the high parental conflict has a deleterious effect on [X] and, to the extent that it is possible for the Court to do so, [X] must be protected from high parental conflict.
These are matters that Mr Bolton was aware of as areas of concern and, yet again, he has, without any proper basis made an allegation that the mother’s mental health has deteriorated, and that raises real concern for the Court, particularly where he has been given a very clear statement as to why that conduct is unlikely to assist the mother or the child. For those reasons, I think there is an ample foundation for making the orders that I do under section 64B of the Act.
For these reasons the Court is not satisfied that it is not in the best interests of justice for these proceedings to be re-opened and accordingly I order that the father’s Further Amended Initiating Application filed on 20 November 2023 be dismissed.
COSTS
I will make an order that the father pay the mother’s costs to Legal Aid in the sum of $5,000, and I will stay that order for 90 days. I heard submissions from each of the parties regarding costs. The father opposed a costs order being made against him on the basis of impecuniosity and that he had acted reasonably in bring the applications. I take into account the father’s financial circumstances in making that order, and I make it having regard to the total claimed costs of $8,490.56. The costs order reflects what I calculate to be the reasonable party/party costs of the mother when assessed against the scale of costs.
It is a feature of this case that the father has brought this contempt application in circumstances he was on notice by reason of the terms of the reasons for judgement prepared by Bennett J that it was not a case for a contempt application. Further, the application was not personally served. As to the Rice & Asplund matters, I think it would have been apparent to the father, when he was preparing his affidavit material, that he was actually dealing in large part with matters that have occurred prior to the orders being made in 2018, rather than the orders of 2022. The father has been wholly unsuccessful in his application and for these reasons the presumption that each party bear their own costs in proceedings under the Act (s 117(1)) are displaced and the Court is of the view that an award of costs is justified particularly having regard to s 117(2A)(e) of the Act.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 15 January 2024
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