FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Castro & Paulson [2024] FedCFamC2F 1630
File number(s): BRC 8920 of 2023 Judgment of: JUDGE BERTONE Date of judgment: 11 December 2024 Catchwords: FAMILY LAW – Final Parenting Orders made in 2016 after defended hearing – Father seeks to change final orders where he has previously applied in 2018 and 2020 –Father was found guilty of contravention of orders in 2024 – Section 65DAAA applied - No significant change of circumstances found - Final Parenting Orders in best interests of child – where Mother seeks declaration that Father is vexatious litigant pursuant to section102Q – declaration made Legislation: Family Law Act 1975 (Cth), Part VII, Division 12 A, s60CA, s60CC, s65DAAA, s69ZN, s102Q, s102QB, s102QE, s102QG.
Federal Court of Australia Act 1976 (Cth), s4
Domestic and Family Violence Act 2012 (Qld) s51
Cases cited: Babic & Taccini [2024] FCWA 203;
Gambetto & Farrelli [2023] FedCFamC1F 465;
McEnearney & McEnearney (1980) FLC 90-866;
Miller & Harrington (2008) FamCAFC 150;
Monfort & Bade [2022] HCASL 112;
Moreton and Berry [2014] FamCAFC 208;
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398;
Pencious & Searle [2017] FamCAFC 210;
Potier v Attorney-General (2015) 89 NSWLR 284;
Rice and Asplund (1979) FLC 90-725;
Rilak & Tsocas [2020] FamCA 49; and
Division: Division 2 Family Law Number of paragraphs: 141 Date of last submissions: 10 September 2024 Date of hearing: 9 August 2024 Place: Brisbane Counsel for the Applicant: Mr R Gordon Solicitor for the Applicant: Beck Legal Group Counsel for the Respondent: Ms P Eviston Solicitor for the Respondent: Redhill Legal ORDERS
BRC 8920 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CASTRO
Applicant
AND: MS PAULSON
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS:
1.The Father’s Initiating Application filed 10 July 2023 is dismissed.
2.Pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), the Father, MR CASTRO, is prohibited from instituting proceedings under the Act against or in relation to the Respondent, MS PAULSON, without first being granted leave to commence that proceeding pursuant to section 102QE of the Act.
3.In the event the Father seeks leave to commence proceedings pursuant to section 102QE of the Act he must not serve the Mother with his application unless specifically ordered to do so pursuant to section 102QE(4) of the Act.
4.With respect to any order for costs sought by the Mother:
(a)Notice must first be given to the Father as to the quantum of costs sought; and
(b)If agreement cannot be reached within 14 days after notice is given, then the Mother shall file and serve written submissions, not exceeding ten (10) pages, addressing the issue of costs within 28 days of giving notice; and
(c)The Father shall file and serve written submissions in reply, not exceeding ten…
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CaseChat Overview and Summary
The court examined several legal issues, including whether there had been a significant change in circumstances since the final parenting orders were made in 2016, and if Mr Castro had acted vexatiously in his attempts to modify these orders. In considering the application, the court also had to determine if the current orders were in the best interests of the child. Additionally, the court assessed whether Mr Castro should be declared a vexatious litigant, given his history of making repeated and unreasonable applications.
Judge Bertone found that there had been no significant change in circumstances that warranted altering the final parenting orders. The court also concluded that the current orders remained in the best interests of the child. Furthermore, given Mr Castro's previous applications and his recent contravention of court orders, the court determined that he had acted vexatiously. Consequently, the court made a declaration that Mr Castro is a vexatious litigant under section 102Q of the Family Law Act 1975 (Cth). The court dismissed Mr Castro's application to modify the parenting orders and imposed restrictions on his ability to initiate further proceedings against Ms Paulson without leave.
In accordance with the court’s findings, Mr Castro's application to modify the parenting orders was dismissed, and he was prohibited from initiating proceedings against Ms Paulson without leave. Additionally, if Mr Castro seeks leave to commence proceedings, he must follow specific procedural requirements. The court also outlined the process for determining any order for costs sought by Ms Paulson, including notice, written submissions, and a determination in chambers. The form of the order is subject to entry in the Court’s records and may be reviewed for minor errors or variations.
Orders
Orders of the court
BRC 8920 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR CASTRO
Applicant
AND:
MS PAULSON
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS:
1. The Father’s Initiating Application filed 10 July 2023 is dismissed.
2. Pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), the Father, MR CASTRO, is prohibited from instituting proceedings under the Act against or in relation to the Respondent, MS PAULSON, without first being granted leave to commence that proceeding pursuant to section 102QE of the Act.
3. In the event the Father seeks leave to commence proceedings pursuant to section 102QE of the Act he must not serve the Mother with his application unless specifically ordered to do so pursuant to section 102QE(4) of the Act.
4. With respect to any order for costs sought by the Mother:
(a) Notice must first be given to the Father as to the quantum of costs sought; and
(b) If agreement cannot be reached within 14 days after notice is given, then the Mother shall file and serve written submissions, not exceeding ten (10) pages, addressing the issue of costs within 28 days of giving notice; and
(c) The Father shall file and serve written submissions in reply, not exceeding ten (10) pages, within 14 days after service of the Mother’s submissions.
5. The question of costs shall then be determined in Chambers on the basis of the parties’ written submissions with Judgment being delivered as soon as practicable thereafter.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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