Fullmer and Omeros (No 3)
[2021] FCCA 1616
•16 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Fullmer & Omeros (No 3) [2021] FCCA 1616
File number(s): MLC 7203 of 2016 Judgment of: JUDGE HARLAND Date of judgment: 16 July 2021 Catchwords: FAMILY LAW – threshold argument Rice and Asplund – no change of circumstances – application for review of registrar’s decision dismissing several counts of his contravention application Legislation: Family Law Act 1975 (Cth), pt XIB, ss 64B(2)(g), 70NEB, 102NA(1)(c)(ii). 102Q
Federal Circuit Court Rules 2001 (Cth), rr 25B.02(1), (2), 25B.04
Cases cited: Rice & Asplund [1978] FamCA 84
Fullmer & Omeros [2019] FCCA 191
Fullmer & Omeros (No.2) [2020] FCCA 466
Number of paragraphs: 54 Date of hearing: 13 July 2021 Place: Melbourne Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent appeared in person Counsel for the Independent Children's Lawyer: Mr R Allen Solicitor for the Independent Children's Lawyer: Lampe Family Lawyers ORDERS
MLC 7203 of 2016 BETWEEN: MR FULLMER
Applicant
AND: MS OMEROS
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.The Initiating Application filed on 25 August 2020 be dismissed.
2.The Response filed on 28 May 2021 be dismissed.
3.The Application for Review filed on 13 May 2021 be dismissed.
4.That the call over listing on 5 August 2021 be vacated, noting that only a contravention application remains on foot.
5.Pursuant to s 64B(2) of the Family Law Act 1975 (Cth), if in the event the mother or father files an Initiating Application to vary the final parenting orders made 6 March 2019, they shall file with the Application an Affidavit bringing this Order to the attention of the Court, and evidence as to there being a significant change of circumstances since the final orders, justifying the parenting matter being reconsidered.
6.The Independent Children’s Lawyer be discharged.
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 under the pseudonym Fullmer & Omeros (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
Two discrete applications were listed before me on 13 July 2021. The first application to determine is a Rice & Asplund [1978] FamCA 84 (“Rice & Asplund”) threshold issue with respect to the initiating application filed by the father on 24 August 2020.
The second is with respect to the father’s application to review Registrar Kourtis’ decision made on 29 April 2021, dismissing counts 9 to 22 of the father’s contravention application filed on 4 March 2021 (set out at pages 10 to 23 of the contravention application).
The matter was conducted via Microsoft Teams which was challenging for all. The parties are self-represented and have appeared before the courts on many occasions. Mr Allen of Counsel appeared for the Independent Children’s Lawyer (“ICL”), who very helpfully prepared brief written submissions addressing the threshold issue. The ICL is not involved in the contravention proceedings.
In order to provide some context to these applications, it will be necessary to refer to the procedural history and Her Honour Judge Stewart’s reasons which were delivered on 1 February 2019, with final orders being made on 6 March 2019. Her Honour sets out a detailed procedural history in her reasons. Her Honour’s reasons should be read together with these reasons for context and I will briefly address those reasons.
HER HONOUR JUDGE STEWART’S REASONS
Judge Stewart heard the trial over 5 days. The parties were self-represented at the trial. The ICL was represented by counsel and greatly assisted the Court both before Her Honour and before me.
Her Honour noted that both parties provided a significant amount of detail before the Court which partly reflected their personality styles. Having read some of the many affidavits the parties have filed with respect to their initiating applications, responses and contraventions, nothing has changed.
Her Honour’s reasons, which span 79 pages, are detailed and make for sober reading. Her Honour found it necessary to make criticisms of both parties. It is significant to note that neither party appealed Her Honour’s orders. It is not open to them to complain about the orders now. It is very clear from the reasons that it was a difficult matter where she foreshadowed there being ongoing problems between the parties.
The findings Her Honour made with respect to the father was set out at paragraph 50 to 55, which I set out here:
Having had the opportunity to observe the parties in giving evidence and in Court (as they were self-represented litigants and therefore their interactions with the Court were greater than if they were represented), I have formed the view that the Father is:-
a) disorganised;
b) obstructive;
c) lacking insight;
d) completely incapable of shielding X from parental conflict;
e) peevish & querulous;
f) manipulative; and
g) playing games;
h) using his culture and level of emotion as a means of obfuscation.
The Father’s position was that he had experienced the Mother as harassing, especially with respect to communication surrounding X. During a therapeutic counselling session, Ms D confirmed that the Father had received numerous text messages from the Mother, coming through on his phone from WhatsApp in less than hour.
In circumstances where the Father was able to superficially acknowledge that he may have behaved inappropriately, his rationale was nearly always that he had been provoked by the Mother. Indeed, he said in relation to the Suburb K incident that occurred in January 2017, that she provoked a “huge drama”. The objective facts surrounding that incident indicate that the opposite is likely.
The Father’s presentation running the case was also symptomatic of his personality style and lack of insight into his contribution to the position of X, particularly in relation to high conflict events between he and the Mother. For instance, much of his case in cross-examination was directed towards establishing that the Mother was to blame. The Mother’s behaviour has at times been provocative and frustrating for the Father, but equally he minimises and rationalises the impact of his own behaviour on the situation.
Throughout the Father’s case, he asserted that he was the victim of unsubstantiated attack by the Mother, which had played out in numerous venues such as the Magistrates’ Court regarding family violence proceedings, and the Federal Circuit Court in terms of this litigation. His position was that he had been the subject of harassment, defamation, and systems abuse against him by the Mother. He felt, in summary, that he was under siege with the various types of litigation he was subjected to, and was having difficulty in coping with the multifaceted forum-shopping that he said the Mother was engaging in. The Father pointed out that he had been subjected to four “AVOs” in one year, which he felt were without substance.
I find that the Father has a high level of emotional dysregulation which has been exhibited in front of X. Whilst he denies that he is disorganised, he has regularly been late to changeovers, and has consistently proven that he is not able to be punctual. His behaviour demonstrates high levels of chaos and disorganisation, and even within the confines of the Court, where the Father did his best to respect the processes of the Court, it was very clear that he is a man who is querulous and ready to resort to litigation.
It appears simply from what the father said during the course of argument before me that he continues to make similar complaints about the mother victimising him, harassing him, defaming him, and using systems to abuse him. In this regard I note that the father repeatedly referred to proceedings in other courts.
Her Honour made the following observations of the mother at paragraphs 57 to 62 which I also set out here:
The Mother’s position was that she had experienced the Father as violent, denigrating and disrespectful to her. She also experienced him as oppositional and reactive to her proposals for X, and emotionally reactive to a request from her seeking a solution. She experiences the Father as blaming her for everything in his life, and in particular the fact that he feels trapped in Australia, due to the Mother’s residence here with X.
The Mother has many complaints about the Father. I have formed the view that the Mother is highly intelligent but also has an unusually intense and pedantic personality style, prone to detailed analysis and over-thinking of some issues. Whereas the Father is chaotic and disorganised, the Mother is highly organised and forward planning. For her, this renders the Father frustrating in the extreme. It has now rendered her communication style with him demanding and insistent as she searches for solutions in a demanding and persistent way. She may not always have been like this. It is much like a ‘chicken and egg’ conundrum. Nevertheless, the Father experiences the Mother’s attempts at discussion as harassing and dictatorial, at times with some justification.
The Mother experiences the Father as almost a ‘Jekyll and Hyde’. She said she has found him to be angry and aggressive towards her in one moment, but then transforms to becoming confused as to why the Mother is not friendly towards him, with little or no insight into the impact of his behaviour.
An example of the level of parental conflict in this family is what occurred between the break in the matter when the proceedings were part heard, where the Mother unilaterally enrolled X in a new kindergarten. There seems to be a pattern in the Mother’s behaviour where she makes quite serious and long term unilateral decisions about X with no reference to the Father, which infuriates him.
The Mother uses highly emotive language when discussing what has occurred for X in this case. For instance, she talks about X being emotionally abused by the Father, and that the Mother needs to deal with the “parental alienation”. To that extent, I think the Mother has subjectively heightened responses which are not always available on the evidence. However, this needs to be viewed in light of what is a highly conflictual and difficult situation, in circumstances where the Father has engaged in behaviour that is distressing for the Mother, and which at times has been violent.
The Father has given the Mother much to complain about. The combination of the Father’s personality style and the Mother’s is, in a way, a perfect storm, which inevitably results in conflict between the parties at the highest level. This is the highly reactive and emotional dynamic between the two of them.
At paragraph 109, Her Honour says:
When assessing Ms D’s evidence, I take into account that the Mother may be somewhat histrionic when recounting events. However, given the Father has become violent and controlling at times, I accept Ms D’s professional opinion of the Mother’s subjective experience of the Father and how it impacts on her personal functioning. This is of particular importance as the Father is incapable of change, seems unwilling to truly acknowledge he is at least partially responsible for conflict, and is unwilling to truly engage in any therapy or educative processes which might assist. Therefore, absent any willingness by the Father to change, the Mother is likely to continue to experience the parenting arrangements as intolerable, which in turn must ultimately diminish her parenting abilities.
Importantly, Her Honour found that the father was responsible for family violence and set out troubling incidents in some detail. The father ignores this finding against him. She also referred to the parties using recording devices as weapons in their attempts to prove wrongdoing of the other. She stated that the continuous recording of interactions must cease and that in itself it conveys the conflict between the parties to X. With respect to the father’s conduct regarding an incident at Suburb K on 5 January 2017, Her Honour had the benefit of assessing the evidence of the parties, the maternal grandfather, and of video recordings. She referred to the incident doing the father no credit and being indicative and typical of interactions between the parents. Judge Stewart said at paragraph 171:
The Father’s presentation during this incident was appalling. There was no requirement for him to be there and not only did he place X right in the midst of witnessing aggressive verbal abuse towards her Mother and her maternal grandfather, this incidents evidences the Father’s complete inability to insightfully consider what might be in the best interests of his daughter in terms of shielding her from family conflict. This incident also evidences the Father’s incapacity to shield X from the impact of his emotions. For X the incident would have engendered torn loyalties, confusion and also fear.
Her Honour also made observations with respect to the mother’s communication style. After setting out a lengthy email from the mother to the father, Judge Stewart found that it demonstrated the mother’s communication style with the father as being provocative and prickly, which unsurprisingly results in a negative response from the father. She observed that both parties were unduly sensitive to certain issues, fractious and reactive. Her Honour made detailed, prescriptive orders. From the material I have read, nothing has changed.
PROCEDURAL HISTORY FOLLOWING FINAL ORDERS
The procedural history which I will set out is only with respect to what has taken place since the final orders were made. It is as follows:
1 February 2019 Her Honour Judge Stewart delivers reasons. 6 March 2019 Her Honour Judge Stewart makes final orders. 6 Sep 2019 Father files contravention application alleging breaches of orders 5(e), 9, 7(b) and 14(a), (b) of the Orders made 6 March 2019. 30 September 2019 Registrar Riddiford summarily dismisses the father’s contravention application filed on 6 September 2019 22 November 2019 Mother files initiating application seeking to discharge order 12 (b) of the Orders made 6 March 2019, and to travel with the child overseas. 20 February 2020 Her Honour Judge Mercuri hands down her reasons and dismisses the mother’s application 12 August 2020 Father files contravention application alleging breaches of orders 5(a), (c), (e), and 7(b), (c) (i), (ii), and (iii). 24 August 2020 Father files Application for Final Orders, seeking that the final Order of 6 March 2019 be amended. 14 September 2020 Registrar Sudholz makes orders dismissing contravention application filed on 12 August 2020 for non-compliance with the Rules and strikes out the father’s affidavit filed 9 September 2020 as an abuse of process 22 September 2020 Registrar Hayward makes an order reappointing the ICL. 23 September 2020 Registrar Hayward makes consent orders amending order 7(c)(iii) of the final Orders made 6 March 2019.(the changeover order). 4 March 2021 Contravention application filed by the father alleging multiple breaches of the final orders made 6 March 2019. 29 March 2021 Registrar Hayward makes an order adjourning the contravention application for hearing on 29 April 2021.
Otherwise adjourned the father’s initiating application for a threshold Rice & Asplund hearing.29 April 2021 Registrar Kourtis strikes out counts 9 - 22 of the father’s contravention application filed 23 February 2021. 13 May 2021 Father files Application of Review of Registrar’s Decision. HEARING ON 13 JULY 2021
During the interim hearing before me on 13 July 2021, the father frequently spoke off topic, interjected and raised issues that were not relevant to the issues in dispute before the Court. He was also at times disrespectful. The mother’s position is that the father is using litigation as his tool to continue to perpetrate family violence upon her.
The ICL proposes that an order be made pursuant to section 64B(2)(g) of the Family Law Act 1975 (Cth) (“FLA”) as follows:
if in the event the mother or father filed an initiating application to vary the final parenting orders made 6 March 2019 with a court exercising jurisdiction under the family Law act (1975), they shall file with the application and affidavit bringing this order to the attention of court and evidence as to why the variation sought does not offend the principle in the case of Rice v Asplund.
At the hearing, I raised concerns as to the extensive resources of the Court that have been expended on this matter and raised the issue of whether or not orders should be made pursuant to Part XIB and section 102Q FLA with respect to vexatious proceedings. That section gives the Court options with respect to declaring proceedings vexatious or declaring litigants vexatious if certain conditions satisfied. Given the serious nature of such an order, which can be made on the Court’s own motion, it is important that the parties be given opportunity to be heard before the Court makes such an order. Mr Allen of Counsel quite properly submitted that he did not think the conditions set out in section 102Q FLA have been established. The ICL is concerned about the ongoing damage being done to X by the parents being in constant litigation. It was for this reason that the ICL seeks the order under section 64B(2)(g) FLA. I am satisfied that it is appropriate to make such an order.
The father continually referred to County Court proceedings where he alleges the mother has been found guilty of perjury. Those proceedings are not before me and are not relevant to the issues that I have to decide. Despite being told this several times, the father continued to attempt to play a video recording over the Microsoft Teams hearing. The father says he successfully appealed the Magistrate’s Court orders. I note that during the hearing before me, he referred to the Magistrate’s Court as being corrupt. He also referred to Supreme Court proceedings.
The father’s initiating application does not seek to change the orders with respect to the spend time arrangements, or parental responsibility. The father did not address the issue of the change of circumstances, but referred to wanting the mother to comply with Orders and making other complaints. As I pointed out, the Court has power to vary the orders as part of contravention proceedings whether or not a contravention is made out. It may well be that the Court is satisfied orders that continue to be the subject of ongoing problems in dispute between the parties should be discharged. The order with respect to telephone contact is an example.
The father referred to wanting justice. From what I can gather from his material and arguments, it is his perception of what justice would be for him – which would be a complete vindication of him, including the negative findings Judge Stewart made of the mother, and the mother being condemned as being a manipulative perjurer. It is about how he believes he has been perceived, and his view that the mother has not been dealt with for the allegations he makes regarding perjury and breach of orders. If that is his aim, no court proceedings will be able to satisfy him. It is not the role of the Court to rule on every dispute between the parties. Parenting proceedings are concerned with the best interests of children. In this case it concerns X who is just seven years old. The parties have been litigating about her since she was two years old.
The mother very clearly sees each step the father takes in litigation as being further examples of the father’s continuing family violence. It is apparent just from reading some of the material that each parent sees the court systems as being complicit in their victimhood. What is absent is any sense that they have heeded Judge Stewart’s words about their own conduct. The parties cannot take responsibility for the other’s conduct, but they can for their own. The person who will suffer the most in the long term is X.
THE FATHER’S INITIATING APPLICATION
This is the second initiating application filed since the final orders were made on 6 March 2019. On 22 November 2019, the mother filed an initiating application some six months after final orders had been made seeking to travel overseas. Her Honour Judge Mercuri heard that application and delivered reasons on 20 February 2020, dismissing the application.
When the matter was before me, the mother was offended at being criticised and being put in the same category as the father. She said that her application for travel was a discrete issue as there had been damage to a house she owns in Country CC that she needed to attend to. She did not mention that in her application she had also sought to travel for family holidays and celebrations that she wanted to attend. I note her father lives in Country CC, and presumably she would be able to have family assist her with respect to her property.
At the time of hearing, I was not aware that there were written reasons by Judge Mercuri. Having had the opportunity to read those it is clear that the mother was disingenuous before me about that application as she failed to mention travelling to other countries to attend various events. As Judge Mercuri noted, Judge Stewart dealt with both the issue of overseas travel as well as the timing of overseas travel in her reasons. Judge Stewart found that risk if the father were permitted to travel overseas with X there was an unacceptable he would fail to return to Australia noting that he felt trapped in Australia.
Judge Mercuri dismissed the mother’s application having been satisfied that she did not overcome the rule in Rice & Asplund. She specifically referred to the law at paragraphs 16 to 18 of those reasons I repeat those here.
Turning then to the law, it is well settled that a court ought to be cautious in hearing an application to amend final orders and only do so in circumstances which justify such action. In In the marriage ofRice & Asplund (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.[1]
It is settled law that before a court considers reconsidering parenting issues which were the subject of final orders, the applicant must show that there has been a significant change in circumstances, and that it is ultimately in the child’s best interests to permit further litigation in relation to parenting matters. Not only does this approach avoid endless litigation with respect to the same issues, but it avoids the risk that one judge will simply substitute orders which they believe are in the best interests of the child or children for those made by another judge. It is also settled that in applying the rule in Rice & Asplund, the court must always be guided by what is in the child’s best interests.
In this case therefore, it is relevant to consider whether there has been a significant change in circumstance which might warrant the making of different parenting orders and, if so, the likely changes in orders must be weighed against the potential detriment to the child caused by further litigation.
[1]In the marriage of Rice & Asplund (1979) FLC 90-725 at [41].
Those statements of law apply equally to the father’s initiating application. The ICL helpfully summarised the variations to the final orders that the father seeks as being:
(1)Amending order 5(e) to increase the father’s telephone – Skype communication from 10 minutes each Sunday to up to 30 minutes. Her Honour Judge Stewart specifically dealt with the father’s communication with X and the reasons for being prescriptive with respect to that order. She expressed some concern that making such an order would continue the conflict. Two of the contravention is that the father complains of relate to this order. As I indicated during argument both parties should be aware that the Court is able to vary parenting orders pursuant to 70NEB. This includes discharging orders and can be done whether or not the contravention is established.
(2)The father seeks to vary order 5(g) to increase his time on X’s birthday from 4 hours to 6 hours.
(3)The father also sought variations with respect to the changeover orders. As noted by the ICL, the aspect of the changeover orders causing most conflict between the parties was resolved by consent orders made by Registrar Hayward on 23 September 2020. The consent orders provide that changeover that does not take place at the school will take place at a police station, and that there will no longer be supervised changeovers. In her response the mother sought to revert to the original changeover order despite all the difficulties associated with that and which is the basis for a significant part of the father’s contravention application.
(4)The father sought an order allowing him to arrange for a nominee to effect changeover. That is something that was addressed at the final hearing. Her Honour gave clear reasons for not making such an order.
(5)He also sought another order with respect to handover involving Victoria police having the power to enforce the order which is not an order the court can make.
(6)He also sought to vary the orders which deal with the father’s time being suspended if he was more than 30 minutes late. Again this was specifically dealt with in Judge Stewart’s reasons.
(7)Finally the father seeks an order that enables the parties to post pictures of X on social media. As Counsel for the ICL points out there is a 10 year intervention order in place which prohibits this.
As can be seen from this brief summary, the variations the father seeks did not raise issues of a major change of circumstances. The orders he sought were to amend the final orders, involving in some cases trivial matters and in others tweaking with orders which were not appealed.
For these reasons, I am satisfied that the father has not established that there has been a significant change of circumstances since the final orders were made. I will dismiss the initiating application.
Given the above and the history of these proceedings I am satisfied that it is in X’s best interests to make the order the ICL seeks, requiring the parties to address the issue of any change of circumstances should either of them file a further initiating application.
CONTRAVENTION APPLICATIONS
The father seeks to review Registrar Kourtis’ orders dismissing counts 9 to 22 of his contravention application filed on 4 March 2021. The review is by way of a fresh hearing on the merits of the application. Before turning to that application I will refer to the previous contravention applications.
The father also filed multiple contravention applications in the previous proceedings. The mother also filed a contravention application in the previous proceedings which she withdrew.
With respect to the first contravention application that he filed on 30 September 2019, the father says he was told that it was flawed as he referred to multiple contraventions under one ground. A registrar summarily dismissed his contravention application on 30 September 2019.
The father filed another contravention application on 12 August 2020 which was dismissed by Register Sudholz on 15 September 2020 for non-compliance with the rules. The affidavit the father filed on 9 September 2020 was struck out as being an abuse of process. The registrar noted that the father was informed he cannot use an affidavit to try and raise new grounds of contravention. She further noted that the mother asserts that the father has not complied with the requirement to use DD Family Services and this is why he has not spent time with the child. The registrar further noted that she attempted to assist the parties to resolve those issues.
With respect to the current contravention application filed on 4 March 2021, Registrar Kourtis struck out counts 9 to 20 of the contravention application for failing to comply with rule 25B.02(1) of the Federal Circuit Court Rules (“FCCR”) which state:
(1)An application must be in accordance with the approved form.
She also directed him to file a further affidavit with respect to counts 24 to 27 noting that the affidavit filed with the contravention applications not comply with rule 25B.02(2) FCCR, which states:
(1)The applicant must file with the application an affidavit that:
(a)states the facts necessary to enable the Court to make the orders sought in the application; and
(b)has attached to it a copy of any order, bond, agreement or undertaking that the Court is asked to enforce or that is alleged to have been contravened.
Clearly, the father is frustrated as he has been told to seek independent advice before filing another contravention. The father says he has done so and says he has done what the registrars have required him to do in filing further material.
However, contravention applications are technical applications that are quasi-criminal. There are a range of penalties, from ordering a party to attend courses, ordering make up time, imposing a good-behaviour bond, a fine, to imprisonment. For these reasons the rules must be strictly complied with. The onus is on the applicant to establish on documentary evidence that there is a case to answer. This includes identifying with precision the acts or omissions amounting to the breach of orders.
The respondent to a contravention application is not obliged to put on evidence. The serious nature of a contravention application is reflected in rule 25B.04 FCCR, which summarises the procedures the Court must undertake at a contravention hearing. It is as follows:
At the hearing of the application, the Court must:
(a)inform the respondent of the allegation; and
(b)ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c)hear any evidence supporting the allegation; and
(d)ask the respondent to state the response to the allegation; and
(e)hear any evidence for the respondent; and
(f)determine the proceeding.
If the respondent raises a defence, admitting to a contravention but having a reasonable excuse, the respondent must file evidence supporting that defence.
The contravention application filed on 4 March 2021 raises 27 counts. The first 5 counts are with respect to allegations that the mother did not attend changeovers on 31 July 2020, 28 August 2020, 11 September 2020, 18 September 2020 and 5 September 2020.
Counts 7 and 8 are with respect to Skype communication.
Counts 9 to 23, which the registrar dismissed, are also with respect to changeovers but with respect to the use of a supervised changeover service and payment for these services. I will not set out all of these counts but note that under each statement where the father is required to state precisely what the respondent did or did not do resulting in the alleged contravention, the father fails to do this and rather provides commentary and also sets out previous occasions where he makes the same complaints. The contravention application form has detailed instructions and includes examples of the types of statements that support contravention. I attempted to raise some of the problems with respect to those counts.
The father has previously raised some of these counts in his previous contravention applications.
As his contraventions relate to order 7 of the final orders made on 6 March 2019, I will set out that order here:
For the purposes of changeovers pursuant to these orders:-
(a)changeovers shall be expeditious and courteous;
(b)changeovers that conveniently take place at school occur at school, and the Father be permitted to use a nominee to collect X; and
(c)on a non-school day:-
(i)seven days prior to any changeover that shall not occur at school, the Mother advise the Father of the availability of the maternal grandmother to effect changeover;
(ii)in the event that the maternal grandmother is available to facilitate changeover, changeover occur at the Suburb S Library in the State of Victoria; and
(iii)otherwise the parties do all such acts and things necessary to engage a private child contact service such as DD Family Service, Family Contact Service or such other service as may be nominated by the Mother to facilitate changeover, the costs of same to be borne by the Father at first instance and the Mother to electronically reimburse the Father as to one half of that cost;
(d)as may be otherwise agreed between the parties in writing from time to time.
As can be seen from order 7, there are several requirements with respect to the changeover arrangements.
Part of the father’s complaints with respect to the mother breaching orders is her insistence upon changeovers taking place at her house. The orders of Judge Stewart are clear that changeovers are to occur either at the school or Suburb S library. Given the history between the parties and intervention orders in place, the father’s concern about attending the mother’s home is a reasonable one.
The father has filed so many affidavits since the final orders that it is difficult to work out which affidavits relate to what application. His affidavits are also full of argument and commentary. He uses histrionic and emotive language and accuses the mother of being manipulative and committing perjury. He claims and he repeated this several times in oral submissions that the mother has been found to have committed perjury in the County Court and in the Federal Circuit Court. Insofar as the father is referring to the Federal Circuit Court they are simply not true. Both aspects of the parties’ evidence were criticised by Judge Mercuri, the father’s more so, but those findings fall well short of perjury.
It is clear from the exchanges between the parties that the dispute regarding the changeovers was also coinciding with periods of lockdown in Melbourne and when schools were closed. I repeat again, neither party appealed the orders. The orders are clear as to changeover locations. They do not include either party’s home. It is reasonable for the father to be concerned about breaching the IVO. The mother claims that it was the father would not comply with the orders and this is why he did not see X. What is also apparent from the email from Ms DD is that her service was drawn into the dispute between the parties with several emails being exchanged between them and indeed her email of 13 July 2020 shows the minutiae of the dispute. Indeed, she asked both parties to stop sending her long emails complaining about each other’s past behaviours and that if she continued to need to answer more than reasonable amount of emails and messages she would charge additional fees. It is clear that a number of services, such as the Family Contact Service run by Ms EE, also indicated that they were unable to assist due to the impasse about changeover locations. It appears from the exchanges that the mother was unreasonable and obstructive. Whether or not the father is able to establish that the mother contravened the orders without reasonable excuse is a matter for judicial determination after the evidence is tested.
With respect to counts 9 to 22 of the father’s contravention application it appears that his complaints centre on the mother not reimbursing the father for half of DD Family’s fees as required by order 7. Certainly there is reference to that in his affidavit and annexed is some email exchanges and the screenshot of an expense register for two entries regarding changeovers on 4 March 2020 and 27 March 2020. He does not, however, annex the invoices to his affidavit and does not clearly set out where he has provided the invoices to her and make the request for reimbursement. Whilst his email for example on 30 July 2020 summarises the invoices and request, that is not sufficient to establish that there is an arguable case.
Given this, and noting that the father has been given several opportunities to correct errors in his applications, I find it was open to the registrar to dismiss those counts and I will dismiss the father’s application for review of those orders. Scanning his affidavits they are repetitive and replete with complaints and argument, obscuring the evidence he says supports the alleged contraventions.
The father filed a further affidavit on 12 May 2021 together with his application for review. It appears that this affidavit is both in support of his review application and in answer to the registrar’s orders that he file a further affidavit in respect to his contravention application. It is another example of the difficulties with his material. For example at paragraph 4 he refers to his initial affidavit. He does not identify which affidavit this is. He also refers to several annexures to his earlier affidavit without identifying which one and essentially summarises his complaints. I cannot simply assume it is the affidavit he filed on 4 March 2021 given the number of affidavits that cover similar issues.
For these reasons I will dismiss the father’s application for review. The remainder of the father’s contravention application, being counts 1 to 9 and 24 to 27, remain on foot and is listed before a Registrar for case management.
Mr Allen of Counsel and the mother confirmed that the final intervention order made in 2018 remains in place. That order expires in 2028. As I explained to the parties, that order is relevant because if the father’s contravention application is listed for trial, section 102NA(1)(c)(ii) of the FLA applies and neither party would be able to directly cross-examine the other. The parties will need to seek an order pursuant to s 102NA(1)(c)(ii) FLA and then apply to the Legal Aid Family Violence Cross-Examination Scheme for representation. That would involve further significant public resources being used in this matter.
The mother also raised the fact that they have received a notice of listing advising that the matter has been put in the winter call over. The purpose of this call over is to hear matters with a lengthy history in this Court in an attempt to case manage and, where possible, resolve matters. Particularly in light of the fact that I determine to dismiss the father’s initiating application and that the only application that will remain on foot is the father’s contravention application, I do not think that the parties would be assisted by attending that call over, and certainly based on the material I have read I do not think that any of the Court mediation services would assist. For that reason I will vacate the listing on 5 August 2021.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 16 July 2021
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Procedural Fairness
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Jurisdiction
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Standing
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