Ericsson and Jarrold (No.9) - [2019] FCCA 3202

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERICSSON & JARROLD (No.9)

[2019] FCCA 3202

Catchwords:
FAMILY LAW – Parenting – consideration of the principle in Rice & Asplund – vexatious proceedings – best interests of the children.

Legislation:

Family Law Act 1975 (Cth), ss.4(a), 102QB, 102Q.

Cases cited:

Beesley & Ericsson (No.4) [2017] FCCA 2189

Ericsson & Ericsson [2014] FCCA 2953

Ericsson & Ericsson (No.2) [2015] FCCA 3146

Ericsson & Jarrold(No.5) [2018] FCCA 81

Marsden & Winch [2009] FamCAFC 152

Pedrana & Roberts (No 2) [2015] FamCA 231

Rice & Asplund, In the Marriage of (1979) FLC 90-725

Applicant:

MR ERICSSON

Respondent:

MS JARROLD

File Number:

DGC 1317 of 2013

Judgment of:

Judge Mercuri

Hearing date:

30 April 2019

Date of Last Submission:

30 April 2019

Delivered at:

Dandenong

Delivered on:

8 November 2019

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Counsel for the respondent:

Ms Jenkins

Solicitors for the respondent:

Rockman & Rockman

ORDERS

The father’s initiating application filed 12 October 2018 as amended on 7 March 2019 be dismissed.
The mother file and serve any submissions in support of her application for costs within 14 days.
The father file and serve any submissions in reply with respect to the mother’s application for costs with 14 days of receipt of the mother’s submissions made pursuant to order (2).
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Ericsson & Jarrold (No.9) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1317 OF 2013

MR ERICSSON

Applicant

And

MS JARROLD

Respondent

REASONS FOR JUDGMENT

Introduction

On 12 October 2018, the father filed an initiating application for parenting orders in respect of the children of the relationship, [X] born … 2003 (“[X]”), [Y] born … 2006 (“[Y]”) and [Z] born … 2008 (“[Z]”).
On 8 March 2019, the father filed an amended initiating application wherein he sought changes to final parenting orders made in respect of the children which were made by Judge Phipps on 18 December 2014 (“2014 final orders”).
By her amended response filed on 15 April 2019, the mother sought:
a)that the father’s application be dismissed;
b)orders be made pursuant to section 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) prohibiting the father from instituting further proceedings involving the mother or the children in any court having jurisdiction under the Act without first having been granted leave to commence such proceedings pursuant to section 102QE of the Act; and
c)an order that the father pay her costs of and incidental to her application on an indemnity basis.
Insofar as the mother sought to dismiss the father’s amended initiating application, she argued that the principles in Rice & Asplund[1] apply.
[1] In the marriage of Rice & Asplund (1979) FLC 90-725.
The matter was listed before me for a preliminary hearing on the Rice & Asplund point on 30 April 2019.

Background

The parties commenced living together in 1993, married on … 1993 and separated on 8 December 2012.
In February 2013, the parties attended mediation and agreed to a parenting plan which provided for the children to live with the mother and spend time with the father each alternate weekend and then each Sunday in the other week.
On 12 March 2013, the mother obtained an interim intervention order against the father. The father then commenced spending supervised time with the children from 5 May 2013.
The procedural history of litigation between the parties is relevant to the matters presently before the court and therefore I set it out in some detail in these reasons.
The father filed his first initiating application in this court on 21 May 2013 seeking property and parenting orders.
The mother obtained a final intervention order at the Town A Magistrates’ Court on 10 July 2013.
A four day final hearing was conducted before Judge Phipps commencing on 19 May 2014, following which his Honour made the 2014 final orders.
At the time of the hearing and the making of the 2014 final orders, the parties lived within reasonable proximity of each other. In June 2015, the mother relocated to Suburb D.
The father filed a second initiating application on 14 August 2015.
This application was heard and determined by Judge Phipps on 27 November 2015 at which time the father’s application was dismissed and the father was ordered to pay the mother’s costs fixed in the sum of $5,889 with a stay of 6 months.
The father filed a contravention application on 21 December 2015 (“father’s first contravention application”).
The father filed a second contravention application on 26 February 2016 (“father’s second contravention application”).
At the beginning of Term 3 in July 2016, [Y] and [Z] commenced school at Primary School C.
On 18 July 2016, the father commenced his third initiating application and sought an urgent listing, which was refused by the registrar.
The father’s first and second contravention applications were heard by his Honour Judge O’Sullivan on 21 July 2016.
On 3 August 2016, the father filed an application for a review of the registrar’s decision to refuse an abridgment of time.
On 24 August 2016, Judge O’Sullivan determined that the mother had contravened the 2014 final orders on two occasions without reasonable excuse. His Honour varied the 2014 final orders to provide that where changeover did not occur at school, the father was to collect the children from the mother at the commencement of time and return them to the mother at the conclusion of time (“the July 2016 orders”).
On 29 August 2016, the father’s application for review was dismissed by Judge O’Sullivan and the mother’s costs of the day fixed at $2,882 were reserved.
On 2 November 2016, the mother filed a contravention application (“mother’s first contravention application”).
In January 2017, [X] commenced secondary school at High School D.
On 17 February 2017, the mother filed an amended contravention application (“mother’s amended contravention application”).
On 23 February 2017, Judge Small heard the mother’s amended contravention application, appointed an Independent Children’s Lawyer, and listed the father’s third initiating application for a final hearing on the question of schooling alone. Her Honour otherwise dismissed the remainder of the father’s third initiating application.
On 24 April 2017, the mother filed a second contravention application (“mother’s second contravention application”).
On 8 August 2017, the mother filed a third contravention application (“mother’s third contravention application”).
The father’s third initiating application in respect of schooling was heard by Judge Small on 11 and 12 September 2017, where her Honour determined that the father had contravened the 2014 final orders and the July 2016 orders on five occasions without reasonable excuse. Her Honour ordered the father to undertake a post-separation parenting program and placed him on a two year good behaviour bond with a surety of $1,000.
On 10 November 2017, the mother filed a fourth contravention application (“mother’s fourth contravention application”).
On 19 January 2018, Judge Small made orders varying the 2014 final orders by removing the midweek time that the children were to spend with the father in each alternate week and also clarifying that the mother was able to nominate the secondary school which the children attend.
On 16 August 2018, the father filed an application in a case seeking, among other things, that Judge Small ‘recuse herself from all current and future proceedings in file number DGC1317/2013’.[2]
[2] Father’s application in a case filed 16 August 2018 at paragraph 6.
On 12 October 2018, the father filed:
a)a fourth initiating application seeking to vary the parenting orders in respect of the children; and
b)a further contravention application (“father’s third contravention application”).
On 28 November 2018, Judge Small found the father had contravened the 2014 final orders on five occasions without reasonable excuse and placed him on a further three month bond (“the November 2018 orders”).
On 19 December 2018, the father appealed the November 2018 orders of Judge Small in the Family Court of Australia.
On 7 March 2019, the father filed an amended initiating application in which he sought the following variations to the 2014 final orders:
a)changeover;
b)time with each parent over the school holidays;
c)time on religious festivals;
d)collecting [Z] from school at 3:00pm;
e)the children having a mobile phone when they commence year 7;
f)the imposition of certain restraints on the mother;
g)the children’s time with the father on their religious birthdays;
h)the father’s participation in the children’s school activities; and
i)the children’s time with the father during school holidays.[3]
[3] Father’s amended initiating application filed 7 March 2019 at pages 2 to 7.
In support of his application, the father filed a further affidavit sworn 12 October 2018. I do not propose to set out the contents of that affidavit in full, but I have had regard to it in its entirety. In that affidavit, the father deposed:
a)after the 2014 final orders were made, the mother relocated to Suburb D resulting in an hour’s commute between the parties’ respective homes;
b)that it is just and reasonable for the 2014 final orders to be further varied to allow the father’s time to commence at 3:00pm rather than 3:30pm during school terms and on festivals, having regard to the additional travel time and the fact that the religious day commences earlier in winter;
c)term holiday periods should be equally shared between the parents;
d)commuting should be shared equally;
e)his communication with the children ought to be unhindered;
f)the mother’s husband has confiscated [X]’s school computer on occasions and yells at and punishes the children for minor matters;
g)the mother has taken a watch that he gave to [Y];
h)the court has not properly been informed about ‘the [religion's] common practices’;[4]
i)the mother forces the children to be driven on the religious day contrary to the religious requirement for no driving to occur and thereby is not taking her obligations to the children’s religious upbringing seriously;
j)the orders regarding time with the children on their religious birthday was made when the parties lived close together and it is no longer possible for him to spend two hours with the children when their birthdays fall on school days given the length of travel each way;
k)he sought the mother’s consent to vary the orders for time spent in October 2017 to allow him to deal with the interaction of the school holiday times and the time spent on a religious holiday and the mother refused, resulting in the father having to travel some 200km on that occasion; and
l)the mother travelled overseas and left the children in the care of the maternal grandmother rather than allowing them to spend additional time with him.
[4] Affidavit of the father affirmed and filed 12 October 2018 at paragraph 20.
The mother filed an affidavit on 12 March 2019 in which she submitted that the father’s amended initiating application ought to be struck out on the basis that:
a)there has been no significant change of circumstance;
b)even if there has been a significant change of circumstance, ‘there has been no impact on the implementation of the orders or to the children’s relationship with their father’;[5] and
c)in any event, it would not be in the children’s best interests to increase their time with the father or to reopen the case.
[5] Affidavit of the mother affirmed and filed 12 March 2019 at paragraph 8(b).
The mother sought to rely upon a previous affidavit affirmed on 17 September 2015 in which she deposed:
a)since the 2014 final orders were made, the only change in circumstance was that she had become engaged to Mr Jarrold (her now husband) and, in mid June 2015, she moved to a home she had purchased in Suburb D which was approximately 40kms from the father’s home;
b)the family report was prepared by Ms G for the purposes of the 2014 proceedings;
c)the reference in the 2014 judgment of the assessment made of the father by Dr H who conducted a psychiatric assessment of the father for the purposes of the proceedings; and
d)her concerns about the father’s wellbeing and the children’s time with the father.
The mother also referred to some of the findings made by the court in the 2014 proceedings.
In this affidavit, the mother also stated:
a)the issue of the time at which the father is to collect the children has already been considered by the court in previous applications;
b)there has been no change in circumstance which warrants the reconsideration of the children’s time with the father during school holidays;
c)the issue of commuting has also been the subject of consideration by the court in previous proceedings and there is no change in circumstance which would warrant the reconsideration of this issue;
d)the question of the mother’s parenting capacity and that of her husband’s has been the subject of previous proceedings and there has been no change which would warrant the reopening of this matter;
e)there is a history of intervention order proceedings against the father by the mother, including an unsuccessful appeal to Court B by the father against the granting of a two year intervention order, naming the mother and each of the children against whom the father is restrained from committing family violence among other things;
f)the father harasses [X] on his mobile telephone; and
g)whilst denying the allegations made against her and her husband, the mother conceded that she and her husband discipline the children when appropriate by, among other things removing electronic devices temporarily.
The father also filed a further affidavit in support of his amended initiating application in which he addressed the mother’s application to dismiss his amended initiating application on the basis of Rice & Asplund, and deposed as follows:
a)he remarried three years ago;
b)the children have a solid relationship with him and his wife as noted in the family report obtained in August 2017;
c)he takes issue with some of Judge Small’s conclusions in her reasons for decision in 2018;
d)Judge Small noted that the relationship between [X] and Mr Jarrold was ‘far less than tranquil’[6] and this contradicts the evidence given by the mother on this issue;
[6] Ericsson & Jarrold (No.5) [2018] FCCA 81 at [285].
e)the matter ought to proceed given his concern for the welfare of the children given the ill conduct of the mother’s husband towards them.
f)denied having engaged in any attack of the mother or her husband as alleged;
g)after the hearing before his Honour Judge Phipps in July 2016, the mother unilaterally moved the children from School I to Primary School C;
h)the amended paragraph 12 made by Judge Small in January 2018 ought to be struck out;
i)he ‘largely dispute Judge Phipps finding as his reasons for judgement has omitted all of my responses of 3 days hearing’;[7]
j)disputed the assertion by the mother that the father has sufficient time to collect [Z] from school in winter;
k)disputed the mother’s evidence regarding:
i)the discipline the children receive in the mother’s home; and
ii)the father asking for [Y]’s phone number;
l)raised concerns about [X]’s religious event;
m)took issue with Judge Small’s description of him as having ‘a single minded commitment to the religion’[8]; and
n)repeated his concerns about the refusal to accept evidence from the President of the religious organisation.
[7] Affidavit of the father affirmed and filed 3 April 2019 at paragraph 24.
[8] Beesley & Ericsson (No. 4) [2017] FCCA 2189 at [166].
Relevantly, the father annexed a purported transcript of a discussion between himself and [X] who was at the time 15 years of age.[9] The transcripts purports to record both the father’s questions and [X]’s reply.
[9] Affidavit of the father affirmed and filed 3 April 2019 at Annexure GE-2, pages 5 and 6.
After a discussion about the mother’s husband taking [X]’s mobile telephone from him after an incident where [X] refused to clean a hammock when asked to do so, the father records the following exchange, among other things:
Mr Ericsson: Were there any incidents where you were afraid of (the mother’s husband’s reaction?
[X]:Definitely, There have been incidents in which that he has threatened to hit me that’s quite confronting especially since I’ve seen him do it to his own son so I would totally believe that he would do it to me if he would do it to his own son, so yes.[10]
[10] Affidavit of the father affirmed and filed 3 April 2019 at Annexure GE-2, page 6.
In the course of the hearing before me, the father represented himself. He stated that his motivation in bringing this application was to protect his children.
When asked to articulate what he said constituted the changed circumstances which would justify the court allowing him to proceed with his amended initiating application, the father said:
a)the risk to the children is the paramount consideration, in circumstances where the children have repeatedly reported incidents of physical abuse and being the subject of such abuse in the mother’s home; and
b)the children reported these matters to the police on 31 March 2019.[11]
[11] Transcript pages 5 to 7.
The father also said that the other matters raised in his application arise from the fact that the changed circumstances since the making of the 2014 final orders had not been addressed in any further amendment to those orders, including:
a)the increased travel time to collect [Z] after school and the impact on the religious day in winter;
b)the fact that the father is now married and there is a very positive dynamic in his home that supports the children;
c)the need to reconsider the way that the 2014 final orders operate, particularly in relation to school holiday periods; and
d)the fact that Judge Small ‘overlooked’ Ms A, family consultant’s recommendation in 2017 for specified telephone time between the father and the children.[12]
[12] Transcript page 11 at line 32.
After outlining the above, the following exchange then occurred:
Her Honour: It’s a question of whether or not there has been a change …ultimately that is the consideration that I need to have regard to. So that’s why I’m just redirecting you to address me on what it is that you say has changed between the last occasion that you were here before this court – when you argued all of these matters and when it was determined by a judge of this court, what has changed between that time and now…
Mr Ericsson: …the fact that the children had actually come forward and actually decided that they want to take action on… their concern…
…by itself I believe should open the case. That’s a new circumstance. They’ve never done that before.
…They were always afraid of doing that. We… have a… a child of 15 and a half years… old, who is quite bright and… clever and he decided that he wanted to take that action because previous… raising of concern with me yielded nothing he is not protected… he is not feeling protected. He decided that he wants to do something about that. Now, I can take under oath and state that I have never caused my son to do any of that.[13]
[13] Transcript page 13 at lines 15 to 41.

In response during oral submissions, counsel for the mother referred to the written submissions filed in these proceedings. Counsel relevantly noted that in his Honour Judge Phipps’ reasons for judgment in 2014, a finding was made that the father had committed family violence. Further, Judge Phipps identified a consistent anger management issue and the father consistently inappropriately involving the children in the proceedings and coaching the children. I am satisfied that this is a fair reflection of Judge Phipps’ reasons.
The mother’s counsel also referred to the fact that the mother had sought and obtained an intervention order, which she applied to extend for a further period of two years in May 2018. It was submitted that following a contested hearing in Court A, the mother’s application was granted. The father then appealed this decision to Court B and in February 2019, Court B rejected the father’s appeal and extended the order to 14 February 2021.
It was submitted that the findings in this court, as well as Court A and Court B that the father engaged in family violence have justified the continued restraint on the father from committing family violence against the mother. The most recent of these decisions was made in February 2019.
In relation to the father’s reliance upon the difficulty between the children and the mother’s husband, the mother’s counsel submitted that this is not a new issue, but rather one which was previously raised by the father. It was submitted that the issue was squarely raised in the proceedings before Judge Phipps in 2015, on the last occasion before Judge Small and was the subject of the most recent family report prepared by Ms A.
To the extent that the father has produced a ‘transcript’ of a discussion he had with [X] about his feelings towards the mother’s husband and the fact that [X] has allegedly ‘reported’ his concerns about the mother’s husband to the police, counsel for the mother submitted that the court should exercise caution in relying on this evidence on the basis of previous findings that the father has discussed these proceedings and related matters with the children and inappropriately involved them in adult issues.
The mother’s affidavit attested to the fact that on 31 March 2019, she received a telephone call from the police station advising her that her two older sons had presented at the police station. It does not appear to be in contention that this occurred at a time when the children were in the father’s care and that he took them to the police station. The father denies that he in any way encouraged or forced the boys to report their concerns to the police.
It was submitted on behalf of the mother that at its highest, the father’s evidence on this point is that the children, or at least [X] has said that the mother’s husband has taken his phone and laptop away from him, and that he has been yelled at.
Moreover, it was submitted that:
a)There is no evidence of these matters being pursued by the authorities. Indeed, both parties gave evidence that when [X] attended at the police station, the police officer told them both the same thing; namely, that this appears to be a ‘complex matter.’
b)Since these parties have engaged in litigation in this court, the children have been subjected to a section 11F report in addition to three family reports.
c)To the extent that the father points to the positive relationship he has with his wife as another changed circumstance and a reason to warrant the reopening of this case, this is not new. It was certainly a factor before Judge Small in 2018 when the father’s wife filed affidavit material in support of the father’s claim.
The mother also pointed to an absence of any evidence from the father which would suggest that he sought to address any of the concerns raised in the 2014 proceedings and identified in the judgment of Judge Phipps, including concerns about the possible harm to the children if his time with them were to be extended. It was submitted on behalf of the mother that there is no evidence to show that he has attended counselling, an anger management program, a men’s behavioural change program or the like. Rather, it was submitted that the father continues to demonstrate a lack of insight into his own behaviour and the impact that it has on those around him, in particular the children and the mother.
In response, the father made the following submissions:
a)[X] had repeatedly raised concerns with him for a number of years;
b)he did not in any way coerce [X] to report these concerns to the police;
c)the father did not ever have any anger management issues as is evident from the affidavits provided by his wife; indeed, he said:
There is no anger management. The children reported, in 2017, report with Ms A, very good dynamics and that’s what the reporter has actually stated, I’ve submitted that in my affidavit …
… and so this is in stark contrast to… a report that was made four years earlier by … the previous consultant and, so, I’m asking this court to actually balance the views of the two consultants in here and … on the basis of what is in the best interests of the children, to decide whether the children time with the father should be extended.[14]
d)the mother is intentionally seeking to ‘taint’ his ‘credibility as a father, portraying it in this court, in order to invalidate the matters that I’m bringing before you here’[15]; and
e)an adverse inference ought not be made from the fact that the father withdrew his intervention order proceedings against the mother’s husband in Court A and is now seeking a similar restraint against the mother’s husband in this court. The father stated that he decided to withdraw the IVO proceedings on the basis of ‘prospects’ and on the basis that it was ‘too much for me to take on’. [16]
[14] Transcript page 26 at lines 23 to 33.
[15] Transcript page 28 at lines 8 to 10.
[16] Transcript page 29 at lines 2 to 3.

2014 final orders

As stated, the 2014 final orders were comprehensive. I do not propose to set them out in full.

Rice & Asplund

In Rice & Asplund, In the Marriage of (1979) FLC 90-725 (“Rice & Asplund”), the court said:
… where an order has been made in relation to the issue of where [a] child should live the Court should not lightly entertain an application to reverse that earlier order unless it is satisfied that there are changed circumstances (in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing) which would justify the reversal.[17]
[17] In the marriage of Rice & Asplund (1979) FLC 90-725 at [41].
It is well settled that the Rice & Asplund principle is a manifestation of the ‘best interests’ test.
In Marsden & Winch [2009] FamCAFC 152, the Full Court considered an appeal from a decision to dismiss proceedings in which an applicant sought to re-agitate parenting orders in respect of a child. That case concerned an application by the father in 2008 to re-litigate parenting orders made by the court in 2006.
On appeal to the Full Court, the father challenged, among other things, the manner in which:
…the trial judge had applied the ‘threshold test’ (the so-called rule in Rice & Asplund…) and challenged the finding that the father’s circumstances were not sufficient to justify a hearing of his application filed 28 July 2008…[18]
[18] Marsden & Winch [2009] FamCAFC 152 at [8].
In considering this ground, the Full Court relevantly said:
[41] Warnick J in SPS & PLS [2008] FamCAFC 16… said…
…The “rule” in In the Marriage of Rice and Asplund … that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.
[42]… Before turning to what Warnick J said of it, it is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment… Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
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, to quote Barber J., there is some change 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.
…
[44] As Warnick J discussed, the purpose of the ‘rule’ is to discourage “endless litigation”. In addition, as Nygh J said in McEnearney:
…
58.Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.[19]
[19] Marsden & Winch [2009] FamCAFC 152 at [41]-[45].
The Full Court then adopted the following comments and conclusions of Warnick J in his decision in SPS & PLS [2008] FamCAFC 16 (“SPS”):
When the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination ‘on the merit’. 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.[20]
[20] Marsden & Winch [2009] FamCAFC 152 at [47].
Importantly, the Full Court went on to say:
In summary, the best interests issue arises because 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.[21]
[21] Marsden & Winch [2009] FamCAFC 152 at [48].
The Full Court acknowledged that there would, of course, be circumstances in which the court would need to reconsider decisions previously made in light of significant changes. Each case ultimately would depend on the particular circumstances of their own facts. However, the Full Court did identify the following factors to assist the court to make that determination in any given case, namely:
(i)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(ii)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(iii)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children 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.[22]
[22] Marsden & Winch [2009] FamCAFC 152 at [50].
Where a decision is to be made at a preliminary stage in the proceedings, and without the benefit of testing the evidence before the court, the question of whether or not a prima facie case is made out must be determined by reference to the applicant’s evidence taken at its highest.

Consideration

In this case, having regard to the father’s case at its highest, the only real change in circumstance is the fact that [X] attended at the police station to report concerns about the mother’s husband, together with the father’s transcript of his conversation with [X] about this same issue. Importantly however, whilst the reporting to the police is new, the underlying complaint about the treatment metered out to the children by the mother’s husband is not a new allegation. It is a matter to which the father has made reference in previous proceedings. So much is clear from the father’s own affidavit affirmed 12 October 2018.[23] To the extent that [X] appears now to be a complainant, the court needs to exercise some caution in accepting that this is a change in light of the fact that concerns have previously been raised about whether the father encouraged the complaint to be made.
[23] Specifically, see the affidavit of the father affirmed and filed 12 October 2018 at paragraph 18.
In any event, the father submitted that he does not expect the children to obtain an intervention order against the mother’s husband, but rather he seeks an order that ‘unreasonable reprimand, the punishment, the abusive behaviour the exposure to... violence in the presence of my children … to be stopped.’[24]
[24] Transcript page 13 at lines 45 to 46.
In circumstances where previous concerns have been raised by the court about the father involving the children in the litigation process, there is a question about the extent to which weight can be given to this incident as a basis for reopening parenting proceedings.
In any event, even if this were a significant change for the purpose of applying the principle in Rice & Asplund, that is not the end of the matter. I must still consider whether it is in the best interests of these children for the court to permit further litigation.
Having regard to the history of this matter and to the fact that the bulk of the matters which the father seeks to re-agitate before this court, including his concerns about the mother’s husband’s conduct towards the children, have previously been raised and dealt with in earlier proceedings, I am not satisfied that it is in the children’s best interests for the father to be permitted to proceed with his application.
It is apparent that the father does not agree with many aspects of the 2014 final orders. He has, on numerous occasions, sought to reopen those proceedings with limited success. Whilst not without their own difficulties given the complexities created by trying to accommodate a range of special occasions as well as term holidays and regular term times, the orders provide a means by which the children are able to maintain a relationship with both parents. The evidence which was led in previous proceedings, including the family report released in August 2017, says that the children have a positive relationship with both parents.
The father also takes issue with a number of the allegations made about him in the initial proceedings and in the various intervention order proceedings pursued by the mother. He feels aggrieved by these findings. However, those findings were made by a judge of this court after four days of hearing, with the benefit of observing the totality of the evidence before him. Whilst the father seeks to ‘clear his name’, this court needs to determine whether permitting him to continue to re-agitate those concerns is in the children’s best interests.
I am not satisfied that it is. Further litigation in this matter would require the children to again be exposed to the protracted dispute between their parents. It would also require them to be interviewed again by a family consultant.
These children need finality to this litigation which has now continued in a fairly intensive way for almost six years.

Conclusion – Rice & Asplund issue

For each of these reasons, I am not satisfied that it is in the children’s best interests to allow the father’s amending initiating application filed on 7 March 2019 to proceed. This type of ongoing litigation is the very vice which Rice & Asplund seeks to mitigate.
I therefore order that the father’s amended initiating application be dismissed.

Vexatious proceedings

Section 102QB of the Act relevantly states:
(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)…
(2)The court may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c)any other order the court considers appropriate in relation to the person.
NOTE: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3)The court may make an vexatious proceedings order on its own initiative or on the application of any of the following:
…
(c) the person against whom another person has instituted or conducted vexatious proceedings;
…
(4)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.
(5)…
(6)For the purposes of subsection (1), the court may have regard to:
(a)proceedings instituted … or conducted in any Australian court or tribunal; and
(b)orders made by any Australian court or tribunal; and
(c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted … or conducted, and orders made, before the commencement of this section.
In turn, section 102Q contains the following defined terms:
Australian court or tribunal means a court or tribunal of the Commonwealth, a state or a Territory.
proceedings:
(a)in relation to a court – has the meaning given by subsection 4(1)
(b)…
vexatious proceedings includes:
(a)proceedings that are an abuse of the process of a court or tribunal;
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground;
(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.
Section 4(a) defines ‘proceedings’ as:
a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connection with a proceeding.
In light of the above, the issues which need to be considered in determining the mother’s application for a vexatious proceeding order are:
a)whether the father has frequently instituted or conducted proceedings, as defined;
b)whether those proceedings fall within the definition of vexatious proceedings; and
c)if so, whether this court ought exercise its discretion to make an order under section 102QB(2) in the terms sought by the mother or otherwise.
As is evident from the history to these proceedings set out above, since the 2014 final orders were made in relation to the children’s time with his father, the father has filed the following proceedings:
a)on 14 August 2015, the father’s second initiating application which was dismissed in November 2015 and in respect of which the father was ordered to pay the mother’s costs;
b)on 21 December 2015, the father’s contravention application in which Judge O’Sullivan found the mother to have contravened the 2014 final orders on two occasions without reasonable excuse;
c)on 18 July 2016, the father’s third initiating application which was dismissed by Judge Small on 23 February 2017, other than in relation to the question of the children’s school;[25]
d)the father’s application to review the registrar’s decision after the urgent listing of his third initiating application was refused, which was ultimately dismissed by his Honour Judge O’Sullivan on 29 August 2016;
e)on 16 August 2018, the father filed an application in a case seeking the recusal of Judge Small from all current and future proceedings;
f)on 12 October 2018, the father filed the current application, being his fourth initiating application which was amended on 7 March 2019; and
g)on 19 December 2018, the father filed an appeal from orders made by Judge Small in which she found that the father had contravened the 2014 final orders.[26]
[25] On the schooling issue, her Honour Judge Small made orders permitting the mother to nominate the children’s high school and also varied the 2014 final orders to remove the father’s midweek time.
[26] I note that in addition to these proceedings initiated by the father, the mother also initiated contravention applications on 2 November 2016, which she amended on 17 February 2017, 24 April 2017, 8 August 2017 and 10 November 2017.

Leaving aside the father’s contravention application in which he was partially successful and leaving aside the appeal from Judge Small’s orders, the father has, in less than five years commenced initiated four substantive applications in which he has sought variations to the 2014 final orders. He also sought a review of a registrar’s decision not to list a proceeding with urgency.
In addition to proceedings in this jurisdiction, the father has also unsuccessfully appealed orders made in Court B of Victoria.
In considering whether this amounts to the frequent initiation of proceedings, I note the following comments made by Cronin J in Pedrana & Roberts (No 2) [2015] FamCA 231:
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.[27]
[27] Pedrana & Roberts (No 2) [2015] FamCA 231 at [63].
In this case, the 2014 final orders dealt with issues of parental responsibility, where the children would live and the circumstances in which they would spend time with the father during school terms and holiday periods. Importantly, those orders also considered how time would be spent by the children with the father on religious festivals and on the children’s religious birthdays. To the extent that the orders provided for school holiday time, these orders were specific and sought to balance various competing considerations including when driving is permitted.
As a result of the proceedings initiated by the father, any variations to these orders have resulted in reduced time with the father rather than increases in time.
By his further initiating applications, the father has sought to re-litigate the very issues which were the subject of the initial proceedings and the 2014 final orders. On this basis, I am satisfied that the proceedings commenced by the father constitute frequent proceedings for the purposes of section 102QB.
The question which remains is whether it can be said that these proceedings are ‘vexatious proceedings’ as defined. The court is invited to conclude that the proceedings are vexatious on the ground that they have not been reasonably brought. It is also submitted that the facts in this case are similar to those in Perdana & Roberts insofar in that case, Cronin J said that the father had initiated the proceedings seeking to vary the previous orders without first addressing any of the concerns raised in the initial proceedings.
It was further submitted by the mother that the father’s proceedings were ‘seriously and unfairly burdensome to the mother or which cause her unjustified trouble’ and were therefore vexatious.[28] Cronin J indicated that such a finding would fall within the definition of ‘vexatious proceedings’ and therefore enliven the discretion to make an order under section 102QB.
[28] Transcript page 21 at lines 21 to 22.
It was submitted by the mother that in this case, each of the proceedings brought by the father were instituted or continued without reasonable grounds. On balance, I do not entirely accept this characterisation of the proceedings initiated by the father. In coming to this view, it is not necessary for me to conclude that the father knowingly initiated or continued proceedings which had no reasonable prospects of success; rather, the test is an objective one.
As stated above, it is clear from the history of this matter that the father was not happy with the 2014 final orders. However, no appeal was lodged by the father at that time.
The father filed his first application post the 2014 final orders in August 2015 after the mother moved to Suburb D, a distance of some 47kms from the father’s home. In this application, the father sought orders for equal shared parental responsibility and changes to the orders for time spent by the children with him.
In addition to the mother’s change of residence, the father also relied upon the following:
a)the fact that the mother had re-partnered;
b)the alleged abuse of the children by the mother’s partner;
c)the allegation that the mother was not promoting the children’s involvement with their religion; and
d)the children’s ages and wishes.[29]
[29] Ericsson & Ericsson (No.2) [2015] FCCA 3146 at [9].
This application was opposed on the basis of the principal in Rice & Asplund. Judge Phipps considered the mother’s relocation to Suburb D and her new relationship to constitute changed circumstances. However, his Honour went on to say that those changed circumstances did not justify the re-opening of the proceeding, the prospect of changes being made to the 2014 final orders and the potential detriment to the children caused by the ongoing litigation itself.[30] Judge Phipps concluded that in this case, whatever limited likelihood there was that the 2014 final orders might be changed, this was outweighed by the detriment to the children of further litigation and found:
…apart from the detriment that disputed proceedings cause children there is a heightened concern in this case because of the risk that the father would again inappropriately involve children in the dispute. He may already be doing so.[31]
[30] Ericsson & Ericsson (No.2) [2015] FCCA 3146 at [40].
[31] Ericsson & Ericsson (No.2) [2015] FCCA 3146 at [40].
Ultimately, Judge Phipps concluded that it was not in the children’s best interests for litigation to be recommenced in relation to any of the matters raised by the father.
Whilst ultimately unsuccessful in convincing his Honour that further litigation was in the children’s best interests, his Honour agreed that there were changed circumstances which provided some basis for the father’s application on that occasion. The father’s insight, or lack thereof, into the impact of that litigation on the children and what that reveals about his capacity to make child focused decisions is a separate issue. It does not however, mean that the father had no reasonable grounds on which to make that application.
The father initiated the second substantive parenting proceeding post-2014 final orders in circumstances where the mother had changed the children’s school. The schooling issue went to final hearing, occupied two days of hearing and resulted in a judgment of some 69 pages.[32] Whilst ultimately the father was not successful in his application for the children to return to their previous school, it would be a bridge too far to say that the father’s application in this regard was made without reasonable grounds.
[32] Beesley & Ericsson (No. 4) [2017] FCCA 2189.
Finally, the father filed the present application in October 2018, as amended on 7 March 2019. For the reasons set out above, I am not satisfied that there has been a sufficient change in circumstances which would warrant this application proceeding. On this basis, it could be said that this application has been brought without a reasonable basis, particularly in circumstances where the father was on notice of the requirements of the principles in Rice & Asplund.
In light of the above, whilst the present proceedings can be characterised as vexatious, in the sense that they could be said to have been brought without a proper basis, I am not satisfied that the father has ‘frequently instituted or conducted vexatious proceedings’ for the purposes of enlivening section 102QB of the Act.
Of course, if the father were to continue to initiate such proceedings in the absence of a clear and reasonable basis, the father would risk an order being made under section 102QB.
For completeness, I note that the father has also initiated a number of contravention proceedings in this court, as has the mother. The father has also unsuccessfully appealed a decision in Court A. The father has not been wholly unsuccessful in all of his contravention proceedings. He was less successful in his Court B appeal. On balance, I am not satisfied that these proceedings constitute vexatious proceedings for the purposes of section 102QB.
Again however, should the father continue to make such applications without any proper basis, he risks an order being made under section 102QB in future.
For these reasons, I therefore do not propose making an order as sought by the mother under section 102QB.

Costs

The mother also seeks an order that the father pay her costs of these proceedings on an indemnity basis.
I make orders allowing the parties’ time to file and serve any submissions in relation to the question of costs.

I certify that the preceding one-hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date: 8 November 2019