Giordano & Stone
[2022] FedCFamC2F 398
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Giordano & Stone [2022] FedCFamC2F 398
File number(s): PAC 3650 of 2021 Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND Date of judgment: 31 March 2022 Catchwords: FAMILY LAW – parenting orders – where final parenting orders made in September 2019 – where matter was partially remitted for rehearing by the Full Court – where final parenting orders made in June 2021 – where father files new application in July 2021 seeking variation of final orders of September 2019 and June 2021 – where mother seeks summary dismissal – where mother seeks for the father to be prohibited from filing further applications pursuant to s 64B(2)(g) or in the alternate the father declared a vexatious litigant pursuant to s 102QB of the Family Law Act 1975 (Cth) – father’s application dismissed – father prohibited from filing further applications without leave of the Court Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth)
Family Law Act 1975 (Cth) ss 45A, 60I, 64B(2)(g), 65D(2), 69ZN, 102Q, 102QB
Federal Court of Australia Act 1976 (Cth) s 31A
Mental Health (Forensic Provisions) Act 1900 (NSW) s 32
Explanatory Memorandum to the Family Law Amendment (Family Violence and Other Measures) Bill 2018
Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005
Cases cited: Baukham & Pitresso (No 2) [2020] FamCAFC 188
Cardus & Lavrick [2020] FamCA 579
Eliezer v University of Sydney (2015) 239 FCR 381; [2015] FCA 1045
Freeman and Freeman (1987) FLC 91-857
HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449
Lohe v Sargent [2001] QSC 386
Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Mathews v Queensland [2015] FCA 1488
Mbuzi v Griffith University [2016] FCAFC 10
Pitresso & Baukham (No 2) [2019] FCCA 2529
Re Cameron [1996] 2 QdR 218
Rice and Asplund (1979) FLC 90-725
Sandex & Bondir (No 2) [2017] FamCAFC 130
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16
Tindall & Saldo (2016) FLC 93–727; [2016] FamCAFC 146
Division: Division 2 Family Law Number of paragraphs: 111 Date of hearing: 22 February 2022 Place: Sydney (via videolink) The Applicant: Litigant in person Counsel for the Respondent: Ms Reheby Solicitor for the Respondent: Johnson Horsley Lawyers ORDERS
PAC 3650 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GIORDANO
Applicant
AND: MS STONE
Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.Pursuant to s 45A of the Family Law Act 1975 (Cth) (“the Act”), the application filed by the applicant, MR GIORDANO, on 6 July 2021 be dismissed.
2.Pursuant to s 64B(2)(g) of the Act, the applicant father be prohibited from instituting further proceedings in relation to the child X, born in 2013, without first obtaining leave of the Court.
3.In the event of the respondent mother seeking an order for costs, she is to file and serve written submissions in respect to that issue of no more than two pages within 14 days of the date of these orders.
4.In the event of the mother filing and serving written submissions in accordance with Order (3) above, the father has liberty to file and serve written submissions in reply of no more than two pages within a further 14 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Giordano & Stone has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:
INTRODUCTION
This matter concerns an application to strike out proceedings filed by the respondent mother Ms Stone (“the mother”), who is the respondent to an application by the applicant father, Mr Giordano (“the father”), for variation of parenting orders in respect to the child X, born in 2013 (“the child”). The father’s application seeking such variation was filed a little over one month after final parenting orders were made on 4 June 2021 by a judge of Division 2 of the Court. Those orders were made in circumstances where the matter had been remitted to that judge by decision of the Full Court dated 6 August 2020: Baukham & Pitresso (No 2) [2020] FamCAFC 188. The limited issue to be determined was the amount of time the child was to spend with the father during school holiday periods. The decision of the Full Court did not otherwise disturb the balance of substantive parenting orders made by another judge of Division 2 on 13 September 2019.
The father’s application seeks a variation of both the orders made on 13 September 2019 and also the orders made on 4 June 2021. The application for variation is made in circumstances where there has been no appeal brought by the father in respect to either of those orders.
The mother contends that the father has acted unreasonably and/or vexatiously in commencing these proceedings and, further, that they have no reasonable prospects of success. It is on that basis that she seeks orders for the proceedings to be dismissed and for the father to be declared a vexatious litigant or, in the alternative, for orders to be made requiring the father to seek leave before any further proceedings are commenced.
BACKGROUND
The father was born in 1970 and the mother was born in 1974. They commenced their relationship in 2009 and separated on 21 February 2015.
The child, who is a party to these proceedings, is the parties’ only child.
Proceedings were commenced in the Federal Circuit Court of Australia (as it was then known) in 2016, three years after the child was born. The parties have been litigating since that time.
The final hearing was heard by Judge Dunkley over four days, being 6 and 7 September 2018, 12 October 2018 and a further hearing occurring on 5 August 2019.
On 13 September 2019, Judge Dunkley delivered his judgment, Pitresso & Baukham (No 2) [2019] FCCA 2529, and made final parenting orders which, by way of summary, provided that:
·the mother exercise sole parental responsibility;
·the child live with the mother and spend time with the father on alternate weekends from Friday afternoon to Monday morning and half of school holidays;
·certain restraints be placed on the father in respect to aspects of the child’s care;
·the child be placed on the airport watch list until 31 December 2023.
On 12 February 2020, the Full Court of the Family Court of Australia (as it was then known) heard an appeal by the mother against the orders of Judge Dunkley.
On 6 August 2020, the Full Court delivered judgment in respect to the appeal: Baukham & Pitresso (No 2) [2020] FamCAFC 188. The appeal was partially successful insofar as the Full Court found that the primary judge had erred to the extent that he made orders in respect to the amount of time that the child was to spend with the father on school holidays, without first providing notice to the parties that he was contemplating making orders at variance with those proposed by both of the parties in respect to that issue.
On 15 April 2021, the remitted parenting issue was heard by Judge Howe. This concerned the amount of time that the child was to spend the father on school holidays, and was heard together with outstanding contravention applications that had been filed by the father. To assist her consideration of the issue, her Honour obtained a Family Report, prepared by the family consultant Dr B and dated 17 March 2021 (“the Family Report”).
Subsequent to the hearing before Judge Howe and before her Honour delivered judgment, the father contacted C Family Centre, Suburb D for the purpose of requesting that they facilitate a mediation to address concerns that the father had with the parenting orders that had been made by Judge Dunkley. In circumstances where the matter was still before the Court, the family dispute resolution practitioner engaged by C Family Centre, Suburb D issued a Certificate under s 60I of the Family Law Act 1975 (Cth) (“the Act”) to the effect that mediation was not appropriate in those circumstances.
On 4 June 2021, Judge Howe delivered judgment and made orders that the child spend equal time with both parents during school holidays on a gradual basis, rather than the block time arrangement as sought by the father. Her Honour otherwise dismissed all outstanding applications, including the contravention applications which had been filed by the father. The orders were subsequently amended pursuant to the slip rule on 25 June 2021. That amendment is not presently relevant.
On 6 July 2021, 32 days after judgment was delivered in the remitted proceedings, the father commenced these proceedings which, as will be set out below, seek to re-litigate matters determined in both the judgments delivered on 13 September 2019 and 4 June 2021. The details of the father’s application are set out below.
EVIDENCE
The father relies upon the following:
(1)Applicant's Initiating Application for final orders, including final orders sought by the father, filed 6 July 2021;
(2)Applicant's Initiating Application for interim orders, including interim final orders sought by the father, filed 6 July 2021;
(3)Applicant's affidavit executed 4 July 2021, filed 6 July 2021;
(4)Applicant's affidavit executed 28 September 2021, filed 29 September 2021;
(5)Applicant's affidavit executed 23 November 2021, filed 23 November 2021;
(6)Orders made on 13 September 2019 by Judge Dunkley, as amended on 25 November 2019;
(7)Reasons for Judgment, made on 13 September 2019 by Judge Dunkley;
(8)Orders made on 4 June 2021 by Judge Howe and amended on 25 June 2021;
(9)Reasons for Judgment, made on 4 June 2021 by Judge Howe;
(10)Family Report prepared by Dr B, dated 17 March 2021;
(11)Family Report prepared by Mr E, dated 2 June 2017;
(12)Applicant's notice of child abuse, family violence or risk, filed 6 July 2021;
(13)Applicant's case outline filed on 23 November 2021.
The mother relies upon:
(1)Response to Application for Final Orders filed on 11 October 2021;
(2)Respondent’s affidavit filed 11 October 2021
(3)Respondent’s notice of child abuse, family violence or risk filed 11 October 2021;
(4)Application in a Proceeding filed by the mother on 15 December 2021;
(5)Respondent’s affidavit filed on 15 December 2021;
(6)Respondent’s case outline filed on 21 February 2022.
THE LAW – CONCEPTS AND PRINCIPLES
Relevant legislation
Section 45A of the Act relevantly provides:
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
Proceedings that are frivolous, vexatious or an abuse of process
(4) The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
(5) To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.
(Bold emphasis added)
Section 45A was inserted into the Act by the Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth). The Explanatory Memorandum to the Family Law Amendment (Family Violence and Other Measures) Bill 2018, at paragraphs 74 to 77, relevantly states:
Item 14 would insert new section 45A into the Family Law Act to clarify and modernise the powers of courts under the Act to summarily dismiss unmeritorious applications. It is not intended to change the matters that a court must be satisfied of when determining that a proceeding or defence should be dismissed. It would replace existing section 118, which would be repealed by Item 23.
An explicit power to dismiss unmeritorious applications or arguments brought to harass a party would improve outcomes for victims of family violence by allowing a court to prevent the use of its courtroom as a tool for perpetrators of family violence to perpetuate violence. The new section would complement existing powers to manage proceedings, conferred on courts by Division 12A of Part VII of the Family Law Act (which provides principles for conducting child-related proceedings).
This amendment would also improve court efficiency by providing greater clarity about when applications can be dismissed by the court.
The Victorian Royal Commission into Family Violence noted with approval the inclusion of this amendment in a previous Bill – the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015. The report of the Commission stated that “[s]uch an amendment may go some way to help courts dismiss applications where it is clear that parties are using proceedings merely as a means to further perpetrate violence” .
Having noted that the section can be applied in circumstances where the Court processes are being used as part of a pattern of coercive and controlling behaviour by a perpetrator of family violence, that is by no means the only circumstances where it can be applied.
It can be seen that there are two bases upon which the Court may act to dismiss proceedings pursuant to s 45A. The Court must be satisfied that either:
(a) the application has no reasonable prospect of success, or
(b) the proceedings are determined to be “frivolous, vexatious or an abuse of process.”
For reasons which I set out, it is only necessary to consider, in this case, the issue as to whether the application commenced by the father has no reasonable prospects of success.
The wording of s 45A, in that respect, is similar to that used in s 31A of the Federal Court of Australia Act 1976 (Cth). The history of similar legislative provisions was discussed in detail in Spencer v The Commonwealth (2010) 241 CLR 118 when considering s 31A of the Federal Court of Australia Act. Hayne, Crennan, Kiefel and Bell JJ said at [51]-[52] and [56]:
First, the central idea about which the provisions pivot is “no reasonable prospect” (emphasis added). The choice of the word “reasonable” is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of “no real prospect”; s 31A speaks of “no reasonable prospect”. The two phrases convey very different meanings.
Secondly, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. It will be necessary to examine further the notion of “no reasonable prospect”. But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
…
Because s 31A(3) provides that certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression “no reasonable prospect of successfully prosecuting the proceeding” by reference to what is said in those earlier cases.
(Citations omitted)
Further assistance is provided in Eliezer v University of Sydney (2015) 239 FCR 381 at [35]-[39]. Relevantly for the present analysis, it was observed as follows:
First, the respondents as the moving parties bear the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 (Cassimatis) at [45] (Reeves J).
Secondly, as the respondents submit, the intention behind the enactment of s 31A is “to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129–130…”: White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 (White Industries) at [54] (Lindgren J); see also Cassimatis at [46] (Reeves J). In the cases to which Lindgren J referred in White Industries, the requirement had been expressed in such terms as “manifestly groundless” or “hopeless”. As Hayne, Crennan, Kiefel and Bell JJ held in Spencer v The Commonwealth of Australia [2010] (2010) 241 CLR 118 (Spencer) at 139 [52]-[53]:
…effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. …[I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.
Thirdly, the assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 (Kowalski) at [28] (the Court). That discretion includes whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19] (Buchanan J); Cassimatis at [50] (Reeves J).
In the fourth place, despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)). Consistently with this, the discretion is concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”: White Industries at [50] (Lindgren J) (approved in Kowalski at [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)).
Finally, in his Honour’s helpful explanation of how these principles are to be applied, Reeves J in Cassimatis further explains at [46] that:
…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached.
In considering the particular statutory context of s 45A, it is important to recognise that the touchstone at all stages of the exercise of jurisdiction pursuant to Part VII of the Act is the best interests of the child. This is made clear in s 69ZN of the Act, which sets out the principles for conducting child-related proceedings. Relevantly, the first principle provides that, in making decisions about the conduct of child-related proceedings, “the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.”
Those principles apply to the exercise of discretion at all stages of a proceeding, including in considering an application to dismiss proceedings pursuant to s 45A. This is made clear in the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005, which explains that the intention of Parliament in introducing the principles for conducting child-related proceedings requires the Court to consider “the impact of the proceedings themselves (not just the outcome of the proceedings) on the child” (Bold emphasis added).
It has repeatedly been said by decisions of the Full Court that the best interests of the child are not served by repeated applications to vary orders when there are no new circumstances to be brought before the Court. In Freeman and Freeman (1987) FLC 91-857. The Full Court explained at 76,470:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. … [O]nce the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. ( Ibid 297; See also McEnearney and McEnearney (1980) FLC 90–866, 75499 (Nygh J).
The concern about the impact of repeated and/or ongoing litigation on children tempers what otherwise is expressed in s 65D(2) of the Act as a broad power for the Court to make “a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order”.
The principle derived from what has been described as the seminal decision of Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) provides guidance as to whether the Court should exercise its discretion to make orders revisiting final parenting orders which are already in place. In that case, Evatt CJ said at 78,905:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.
In Tindall & Saldo (2016) FLC 93–727 (“Tindall”), it was observed at [72] that:
The rationale for the “rule” is to give expression to the principle that there must be an end to litigation particularly in relation to children (per Nygh J in McEnearney and McEnearney (1980) FLC 90-866 at 75,499).
In Tindall, it was further observed at [88]:
…the relevant threshold determination is not met merely by a conclusion that ‘fresh evidence’ exists. It is, as the cases demonstrate, the nature and quality of the change in circumstances that is relevant.
In Marsden & Winch (2009) 42 Fam LR 1, the Full Court at [50] set out the following matters that the Court must consider when determining whether a change in circumstance exists:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)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.
In an observation endorsed and applied by subsequent Full Court decisions, in SPS and PLS (2008) FLC 93-363, Warnick J observed at [81] that:
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.
For reasons which I explain below, the mother has discharged the persuasive onus that rests upon her of satisfying the Court that the proceedings commenced by the father have no reasonable prospects of success. This is because the evidence he has presented to the Court does not establish that there has been a change in circumstances impacting upon the parents and/or the child of such significance that it warrants revisiting final parenting orders that have previously been made.
CONSIDERATION
The authorities to which I have earlier referred suggest the following approach should be taken in considering whether the father has reasonable prospects of satisfying the Court that fresh proceedings are justified, in accordance with the principle adumbrated in Rice and Asplund. That is, it is necessary to consider:
(1)The reasons for the current parenting orders that are in place;
(2)The variations proposed by the father;
(3)The reasons presented by the father as to why variation of the previous orders are necessary, having regard in particular to:
(a)Whether it is contended that the Court in previous proceedings failed to consider relevant evidence, either by error or because information was available which would have impacted upon the orders made, and/or
(b)Whether the reasons include evidence of changed circumstances of such significance that it justifies revisiting the previous orders. The Court may be less likely to find such changed circumstances if an application for variation is filed immediately or shortly after the date that final parenting orders were made.
(4)In the event that it is determined that such a change in circumstances has occurred, it is still necessary to give consideration to the impact of the ongoing litigation upon the child. This involves weighing up the potential benefit to the child that would be achieved by the previous orders being revisited, and potentially varied, against the potential detriment to the child caused by the litigation itself.
The reasons for the current parenting orders that are in place
In his reasons for judgment, delivered on 13 September 2019, Judge Dunkley relevantly found as follows:
·It was clear that both parents were “heavily invested” in the case and “took many opportunities to criticise the other and, in their email and oral communication, denigrated the other” (at [12]).
·The evidence presented by both of the parties was “verging on obsessional” (at [13]).
·“Unwisely the father indulged [the child] in two sets of “playful interactions” in which she undressed him preparatory to their showering and in one of the incidents [the child] touched his penis” (at [14]). That exchange was found to be “unwise and unthinking” rather than “intentionally sinister” (at [15]).
·On 10 July 2019, the Region F Local Court granted an interim Apprehended Violence Order (“AVO”) to protect the mother (at [19]).
·“In recent years the father has become fixated on [the child’s] health including on the child’s weight despite evidence from the child’s paediatrician Dr G that there is little to be concerned about” (at [21]).
·“The father during the time the parents lived together was very controlling of the mother” (at [22]).
·“Well after separation from mid October 2018 he embarked upon a course of emailing the mother that was foul and objectionable in its personalised content” (at [22]).
·The father is “prone to stressful and anxious reactions and in one instance damaged a neighbour’s car in the midst of a stressful and anxious overreaction” (at [23]).
·The father “demonstrates limited capacity to restrain his denigrative behaviour of the mother” (at [23]).
·The father “has a generalised anxiety disorder and has consulted Dr H about this” (at [24]).
·Mental health therapy obtained by the father “seems not to have borne any positive improvement for him especially in relation to his interactions with the mother” (at [24]).
·The father has engaged in the denigration of the mother and “in the past he has physically assaulted her on occasions” (at [25]).
·“The mother has also perpetrated family violence on one occasion by grabbing the father’s testicles” (at [30]).
·The family consultant “observed a mutually involved and substantial relationship existed between the child and her father” (at [37]).
·The family consultant “observed a close and affectionate relationship to exist between the child and her mother” (at [38]).
·The family consultant described the child as a “robust three-year-old who appeared to be emotionally secure with a strong relationship to both parents… who indicated some distress when required to part from her mother” (at [39]).
·The family consultant opined that “a substantial change in parenting arrangements or the withdrawal of her primary attachment figure [the mother] is likely to interrupt the attachment process, damage [the child’s] emotional security, and reduce her ability to function socially as an adult” ( at [40]).
Judge Dunkley, relevantly, determined at [40]-[59], [69], [74] and [81]:
The father is often abusive of the mother in his email communication, especially since October 2018. He seeks to excuse his behaviour. He has made insincere apologies for the behaviour. There is no excuse acceptable for his behaviour. His comments were gratuitous, offensive, denigrative, intimidatory and inflammatory.
Given the mother’s anxious personality, she finds the volume, tone, content and frequency of the father’s emails to be overwhelming and counter-productive to her good parenting. It is entirely reasonable and understandable that she feels this way.
It is not possible in these circumstances, for the parents to make joint decisions about long term issues relevant to [the child].
Sole but not unfettered parental responsibility will be vested in the mother. Such an order is in [the child’s] best interest. Whatever her short comings she has a demonstrated capacity to be able to focus on promoting good outcomes for [the child]. The father is too self-absorbed and prone to frustration to be continuously child focused.
[The child] has an attached loving relationship with her mother that should not be disturbed.
Too many nights in the care of her father, absent her mother, might cause distress for [the child] given the father’s tendency towards frustration motivated behaviour. His more obsessive nature, over time, may become apparent to [the child]. To date, it has not.
The strength of [the child’s] relationship with her father helps limit the anxiety she experiences moving from her mother’s care to her father’s care. Several days in one block in the care of her father is sustainable for [the child], without disrupting her relationship with her mother in the opinion of the consultant. The evidence from the mother is [the child] enjoys their interactions.
There is little evidence about [the child’s] view.
What there is, is inferential and often relayed to one parent in the absence of the other, thereby likely indicating a desire within [the child] to please the listening parent.
[The child] has a relationship with the father’s partner, Ms J, and with her maternal grandparents that is unconcerning.
The parents are very poor communicators.
The father’s generalised anxiety and propensity to catastrophise, don’t help with parental communication.
The mother’s propensity to act unilaterally, and not seek input from the father, does not help parental communication. Nor does his incessant emailing of the mother help in their communication.
[The child] is now settling into primary school.
[The child] is well treated by her general practitioner and by her paediatrician, Dr G.
Mutual family violence has during the parents’ relationship and the time they lived together not helped the parents develop a mutually respectful post separation relationship. The existing interim AVO might help to moderate the father’s behaviour. The AVO as currently exists, has the usual conditions about family law orders.
…
In recent times there has not been any physical family violence between the parents, they have however, mainly the father, perpetrated denigrative and demeaning behaviour which is a form of family violence.
…
I am not satisfied that the father will be able to refrain from his tendency to email the mother in a denigrative, abusive and intimidatory fashion once the AVO has expired. His tendency to act out of frustration in a self-absorbed way is too longstanding to give confidence. This tendency of the father negatively impacts on the mother’s parenting and that does not benefit [the child]. Additional it creates for the mother tension leading up to changeovers. Too frequent changeovers or too long periods of time for [the child] with her father, raises the mother’s anxieties and limits her parenting capacity.
…
A more communicative and respectful and child focussed post separation parenting relationship will need to be established before it is likely a greater sharing of parenting responisibility relevant to [the child] will be in her best interest. Given the long history of parental conflict, it is unlikely that they will develop a cordial parental relationship which will be a prerequisite before long periods of time between [the child] and her father would be in [the child’s] best interest.
(Citations omitted)
The Full Court, in their decision dated 12 February 2020, provided a further description of the nature of electronic communication sent by the father to the mother in the period subsequent to the hearing of the case before Judge Dunkley and before his Honour delivered judgment. Their Honours observed at [5]:
After judgment was reserved, the father subjected the mother to a barrage of abusive messages as a consequence of which, on 6 March 2019, she applied to reopen the proceedings. While that application was pending, the father wrote to the mother and, with photographs attached, said he would remove his fingers with an axe in the manner depicted before he wrote to her again in an abusive manner. The mother, who is a victim of family violence perpetrated by the father, interpreted the message as threatening of her and the child and at her behest, on 25 June 2019, a provisional apprehended violence order (“AVO”) was made in her favour against the father.
In respect to the primary judge’s findings regarding the “obsessional” nature of each party’s evidence, the Full Court agreed, stating at [13]:
The primary judge was rightly critical of the material presented in the case, a great deal of which was irrelevant [11]–[13], manifestly so. Prolix affidavits, which recite every parental disagreement, no matter how trivial, are self-indulgent and obfuscate rather than illuminate the issues. They complicate and prolong the trial and there is an obvious risk that potentially relevant evidence is lost amongst the irrelevant. Both parties ran this risk and made the primary judge’s task much more difficult than was necessary. This explains why the primary judge avoided the “obsessional nature” of the evidence [13] and chose to deal with the evidence in a general rather than detailed fashion. There really was no other option and we suspect that had his Honour opted for detail, the trial reasons would still be a work in progress.
It is to be observed, at this point, that the nature of the evidence filed by the father in these proceedings can also be reasonably described as unnecessarily prolix and bordering on the obsessional.
In terms of mental health issues alluded to by the primary judge, the Full Court noted at [32] that, in December 2007, the father was charged with aggravated damage in respect to damaging his neighbour’s car and sentenced under s 32 of the Mental Health (Forensic Provisions) Act 1900 (NSW). It was also recommended that he undertake a mental health assessment and a course of mental health treatment.
In respect to the father’s mental health, the Full Court noted at [42]:
As to the recommendation for a mental health assessment and treatment, it was uncontroversial that on 18 July 2018, the parties agreed that, in accordance with the recommendation, the father would continue therapy with Dr K, who is a psychologist, which he did. At [24] the primary judge noted that the father had attended Dr H, who made those recommendations. Her opinion that the father has a generalised anxiety disorder was accepted. Reference is then made to the father undergoing treatment, which we infer is a reference to his attendance on Dr K, which his Honour observed seemed not to have resulted in “any positive improvement for him especially in relation to his interactions with the mother” [24].
It is to be noted that the father, in these proceedings, denied suffering any mental health issues and attested, by way of evidence from the virtual bar table, that the psychologist he consulted in 2017 advised him that he did not require ongoing treatment. That assertion, with respect, potentially raises a question as to the bona fides of the father’s defence under s 32 of the Mental Health (Forensic Provisions) Act 1900 (NSW), but it is unnecessary to consider that issue in the context of these proceedings. It also raises a question as to whether in the absence of recognising his mental health challenges, which have been found to exist, the father has adequately addressed concerns regarding his mental health.
In terms of the mother’s concerns regarding what she contended were inappropriate interactions between the father and the child, the Full Court noted that, on two occasions, the father “had the child’s haircut without discussing it with the mother beforehand” (at [ 36]). The Full Court stated in that respect at [37] that “the mother’s emotional response that she had been denied the opportunity for involvement in the child’s first real haircut is understood.”
The judgment of Judge Howe dated 4 June 2021 focused upon the issue remitted to her Honour by the Full Court, which was the amount of time that the child was to spend with the father during school holiday periods. The limited focus of that decision is a factor that the father relies upon in contending that he should not be restrained from continuing with his application to vary the orders made by Judge Dunkley. The father misrepresented the nature of his application insofar as he is, in actual fact, seeking to displace the orders of both Judge Dunkley and Judge Howe with a new regime of parenting orders, which will be set out in detail below.
As earlier noted, Judge Howe had the benefit of a Family Report prepared by Dr B. It was observed that the report of Dr B opined in respect to matters that went beyond the subject matter of the issue referred for rehearing by the Full Court. Judge Howe indicated at [48] that she did not have regard to those matters which went beyond the matter that had been remitted to her for determination.
Relevantly, Judge Howe noted at [54] that Dr B stated at paragraph 89 of her report that:
[The child] was asked about school holiday time with her father at both interviews. During the first interview, [the child] said that she might like to spend ‘maybe about two more days’ with her father in the school holidays. When asked about her wishes regarding school holiday time with her father in the second interview, [the child] replied that if she stayed more than three days in the school holidays, she might miss her kitten, L and L would miss her as well. When pressed further on this question, [the child] replied that her mother might not like her going in the school holidays because she and her grandma are afraid that Papa would take her to Country M and not bring her back. Later in the interview [the child] said that her grandmother told her that her father might take her to Country M and leave her there, but she (the child) knows that this is not true.
Further, her Honour at [55] refers to paragraph 90 of the report of Dr B, where she stated:
[The child] said that a couple of weeks previously she went to Town N with Papa and Ms O and it was great fun, but they did not get to do everything. When asked if she would like to go there for a slightly longer period, she replied that that would be good.
Judge Howe also noted that Dr B generally described positive and affectionate interaction between the child and both of her parents, as well as with the father’s current partner, which was summarised at paragraph 102 of the Family Report as follows:
There is no doubt that seven-year-old [the child] loves both of her parents and has a close and strong positive attachment with each of them. She is also closely attached to her maternal grandmother, Ms P, and her father’s partner, Ms J.
Judge Howe also noted at [70] that, at paragraph 105 of the Family Report, Dr B stated:
[The child] was not keen on the idea of spending more than three nights with her father during school holidays. One suggestion could be to extend the time that [the child] spends with her father by one day each school holidays until she is spending one-week blocks with her father. This is out of an abundance of caution, so that [the child] will ease into this gradually, as will the mother
In terms of her recommendation for a gradual increase in time, it was noted at [71] that at paragraph 106 of her report, Dr B observed:
Developmentally there is a big difference between children of seven and nine, and it is anticipated that, if the conflict between the parents abates, and they cease litigating, [the child] will have developed the trust and confidence to spend longer periods away from her mother and with her father.
In that context, Judge Howe noted at [74] that, in giving oral evidence, “Dr B was very clear that she does not believe that it is in [the child’s] best interests to have such extensive blocks with the father and away from her mother.” It is to be noted that the reference to those blocks which concern Dr B was to the father’s proposal “of having half of the holidays configured in one block” (at [73]).
It is clear that Judge Howe was informed by the views of Dr B, stating at [91] that:
…while [the child] remains a young girl, time away from her mother and conversely time with her father is to be staged and incremental to ensure that [the child] matures and with age is able to better cope with the extended periods of time.
Significantly, at [101] of her decision, Judge Howe noted that the orders she made “complete the orders made by Judge Dunkley on 13 September 2019” and were intended to provide “certainty” to the parties. Her Honour expected the parties to comply with the orders and that the orders she made together with those made by Judge Dunkley would “finalise the litigation between the parents” (bold emphasis added).
In providing for the child to spend increasing blocks of time with the father during school holiday periods, Judge Howe noted that the father would inevitably be disappointed that, in at least the short-term, he would not have the opportunity to take the child to Country M to meet with members of her extended paternal family.
Also, of relevance, is that, at [85] of her decision, Judge Howe recorded the concern of the Court “that if [the child] is exposed to negative narratives of either parent, or their home, this will have a damaging psychological effect on her.” In that respect, at [86] of her decision, Judge Howe referenced Dr B’s caution that “if the conflict between the parents continues unabated in, there is a significant risk that [the child] will align with one parent, and reject the other, as a way of coping with the conflict” (Bold emphasis added).
The variations proposed by the father
The orders proposed by the father in his initiating application filed on 6 July 2021 are as follows:
2.1 In relation to Orders made on 13 September 2019 (and amended pursuant to slip rule on 25 November 2019):
2.1.1 Dismiss and delete existing Order (2), and replace it with new Order (2) as follows:
(2) The father and the mother shall have equal shared parenting responsibility for X born in 2013.
2.1.2 Dismiss and delete existing Order (4)(a), and replace it with new Order (4)(a) as follows:
(4)(a) During school term times:
(i) On each alternate weekend, commencing on the first Friday after the making of these orders, and recommencing on the 2nd Friday of each new school term, from after school on Friday until:
(a) before school on Monday, when school attendance is required on Monday
(b) before school on Tuesday, when Monday is a public holiday
(c) 9:00am on Monday, when Monday is not a public holiday and school attendance is not required
(ii) From after school on Wednesday (or 3:30pm if school attendance is not required on Wednesday) until commencement of school on Thursday (or 9:00am if school attendance is not required on Thursday) in each week, commencing on the first Wednesday school attendance is required after the making of these orders.
2.1.3 Delete existing Order (5), and replace it with new Order (5) as follows:
(5) Changeovers shall occur as follows:
(a) If a changeover takes place on a non-school day or outside of school hours then:
(i) The father or his nominee shall collect the child from the mother or her nominee at the maternal grandparents' residence at the beginning of his time with the child.
(ii) The father or his nominee shall return the child to the mother or her nominee at the maternal grandparents' residence at the end of the father’s time with the child.
(b) If changeover takes place on a school day, the father or his nominee shall collect the child from school if his time with the child commences after school and the father or his nominee shall return the child to school if his time with the child concludes before school.
2.1.4 Delete existing Order (7), and replace it with new Order (7) as follows:
(7) In relation to communication and details exchange between the parents:
(a) That the parties shall notify each other of any change to their email address.
(b) Neither parent is required to facilitate communication between the child and the other parent.
(c) Neither parent is required to inform the other parent details about X's travel or accommodation during the time X is spending time with them within Australia.
(d) Neither parent is required to provide the other parent contact details of third parties living in Australia including, but not restricted to, partners, relatives and friends.
(e) In the event of the mother changing her residential address where changeovers take place, the mother is required to inform the father her new residential address at least 30 days before the first changeover is scheduled to take place at the new maternal residential address.
2.1.5 Delete existing Order (10), and replace it with new Order (10) as follows:
(10) That both parties are authorised to receive directly from the child's school a copy of the child's school reports, attendance reports, school photos (at that party's cost) and school newsletters from time to time.
2.1.6 Dismiss and delete existing Order (12), and replace it with new Order (12) as follows:
(12) In relation to overseas travel restraints and permissions:
12(a) Until 30 November 2023, each of Mr Giordano born in 1970 and Ms Stone born in 1974 and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of X born in 2014 (female) from the Commonwealth of Australia.
12(b) From 1 December 2023, each of Mr Giordano born in 1970 and Ms Stone born in 1974 are allowed and authorised to remove X born in 2013 (female) from the Commonwealth of Australia without permission from the other parent.
12(c) The Mother and Father shall do all acts and things and sign all documents necessary to ensure that the Child X born in 2013 (female) has at all times a valid Country Q passport plus an Australian passport.
12(d) That X's Country Q and Australian passports shall be retained by the Father.
12(e) That the father shall give X's Australian passport to the mother by the last changeover before any overseas travel of the mother with X the mother has given the father at least 3 months advance notice of, and that the mother shall return X's Australian passport to the father no later than when the first changeover takes place after the mother's arrival from any overseas holidays with X.
12(f) Both parents are required to give the other parent details of any planned trip outside Australia with X at least 3 months before the day of departure from Australia, including travel dates, itineraries, destination location, address, accommodation, flights and contact numbers.
l2(g) The parents are allowed to take X to accommodation facilities booked after 3 months before departure date from Australia, provided that these accommodation facilities are within the countries previously inforn1ed to the nontravelling parent at least 3 months before depaiiure from Australia, and that details of further accommodation bookings are informed in writing to the non-travelling parent before X's stay at this accommodation starts.
12(h) Both parents are required to do all things and take all necessary actions for X to comply with any travel requirements as required by the immigration authorities of Australia and all the countries X will be visiting including, but not restricted to, visas, Covid- 19 vaccinations and associated immunisation certificates, as and if required by immigration authorities.
2.1.7 Dismiss and delete existing Order (13), and replace it with new Order 13 as follows:
(13) In fu1iher relation to overseas travel restraints and pe1missions:
13(a) Until 30 November 2023 X be and is hereby restrained from leaving the Commonwealth of Australia.
13(b) From I December 2023, X born in 2013 (female) is allowed and authorised to leave the Commonwealth of Australia accompanied by either of her parents Mr Giordano (born in 1970) or Ms Stone (born in 1974), without permission from the other parent.
13(c) From 1 December 2023, X born in 2013 (female) is allowed and authorised to visit accompanied by either of her parents, and without permission from the other parent, any country that has signed The Hague Convention on the Civil Aspects of International Child Abduction, as published by the Australian Attorney-General's Department.
13(d) Each of Mr Giordano born in 1970 and Ms Stone born in 1974 and their servants and agents be and is/are restrained from taking or attempting to take X born in 2013 (female) to any country that has not signed The Hague Convention on the Civil Aspects of International Child Abduction, as published by the Australian Attorney-General's Department.
2.1.8 Dismiss and delete existing Order (14), and replace it with new Order (14) as follows:
(14) It is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List until 30 November 2023.
2.1.9 Dismiss and delete existing Order 17(e).
2.1.10 Delete existing Order (18), and replace it with new Order (18) as follows:
(18) Each party is permitted to enrol the child in or engage the child with any sporting or extra-curricular activity of their choice.
(18)(a) Both parents shall, within 7 days after the making of these orders, provide each other with full details of all extra-curricular activities in which X is enrolled including activity type, organisation, address, day and times of attendance, name of tutor/ instructor, and full contact details of the organisation including telephone, street address and email address.
18(b) If X is enrolled in any new extra-curricular activity, the enrolling parent shall provide the other parent with the details listed in order 18(a) about the new activity within 48 hours after enrolment
2.2 In relation to Orders made on 4 June 2021 (and amended pursuant to slip rule on 25 June 2021)
2.2.1 Delete existing Order 1 (e)(ii), and replace it with new Order 1 ( e )(ii) as follows:
l(e)(ii) During the Term 4 school holidays, from 5.00pm Tuesday 19 December 2023 until 9.00pm Sunday 24 December 2023 and from 9am Friday 29 December 2023 until 6pm Sunday 14 January 2024.
2.3 In relation to new, additional Orders:
2.3.1 The mother is restrained from:
(a) contacting or attempting to contact X and/or the Father and/or accommodation facilities where X is spending time with her father, on any time X is spending time with the Father as per orders
(b) contacting or attempting to contact the Father's partner, and/or any of the Father's relatives or friends
2.3.2 The mother shall, within 14 days of these orders being made, and at her cost, obtain a referral to a psychiatrist for diagnosis and treatment, and attend treatment staring within 30 days after obtaining said referral, and for a period of no less than 6 months or such further period as recommended by the treating psychiatrist, and shall provide the father with a report signed and dated by the treater confirming that she has completed said treatment.
(a) Leave is granted to the mother to provide a copy of the Family Report prepared by Dr B on 17 March 2021 and these orders to any of her treating medical practitioners.
(b) The mother shall provide a copy of the Family Report prepared by Dr B on 17 March 2021 and these orders to the treating psychiatrist during the mother's first appointment with the treating psychiatrist.
2.3.3 The mother shall take all necessary actions and precautions to prevent X from hearing, reading or being exposed in any way and at any time X is not spending time with her father, to comments related to:
(a) conflicts or different views the parents might have
(b) the father, the father's partner, family, friends, culture, background and/or country of origin
(c) any know plans made by the father about future contact time, holidays, travel or planned activities between X and her father
2.4 That the Father's legal costs of and incidental to these proceedings be paid by Ms Stone.
(As per the original)
The reasons presented by the father as to why variation of the previous orders is necessary
During the course of the proceedings, the father advised the Court that his application for variation of the previous parenting orders was not based upon a contention that either Judge Dunkley or Judge Howe failed to consider relevant material. Instead, the father’s focus was upon changed circumstances, which were summarised in table form in paragraph 4 of his affidavit filed on 23 November 2021. He also addressed those alleged changed circumstances in his submissions to the Court. I will address, in seriatim, each of those circumstances which the father contends occurred after the summer of 2018–2019 and which, he argues, amount to changed circumstances.
First contended changed circumstance
The father contended that, at the time of the orders made by Judge Dunkley on 13 September 2019, there was little evidence about the child’s views. He contends that the Family Report of Dr B dated 17 March 2021 detailed:
…multiple views from [the child], including spending “too little” time with her father and “too much” time with her mother, plus [the child’s] specific desire to spend overnight contact time with the father on every Wednesday during school terms.
In that context, it is noted that at paragraph 104 of her report, Dr B recorded:
When [the child] was asked about the time that she would like to spend with each of her parents, she made it quite clear that she spends 'too little' time with her father. She was keen on the idea of spending an extra overnight with him during the week, Wednesday being her preferred day. Notwithstanding that, these proceedings relate to school holiday visitation, so the discussion will focus on that.
In considering this submission by the father, it is to be firstly noted that, the Family Report of Dr B predated the finalisation of these proceedings, with the judgment of Judge Howe being delivered on 4 June 2021. Nevertheless, even accepting that it is potentially evidence of changed circumstances since the judgment of Judge Dunkley was delivered, the father’s representation of the substance of Dr B’s report fails to also recognise that Judge Howe specifically recorded the child as expressing concern about spending “more than three nights with her father during school holidays” and, inferentially, that concern would apply to times other than school holidays.
Further, the reference by the child to the prospect of spending Wednesday night with her father needs to be seen in the context where the father’s application, which was considered by Judge Dunkley, sought, in proposed order 3.1.3, an order that the child spend “in week two from 5:30 pm on Wednesday to 8:30 pm on Wednesday” with the father. The father also sought, in respect to the period subsequent to 1 February 2019, an order for the child to spend time with him every second week from after school on Wednesday to before school on Thursday.
The father’s proposal was the subject of specific consideration in the Family Report of Mr E dated 2 June 2017 who, Judge Dunkley noted, concluded his report with the proposed recommendation that, after the child commences school, the Court might consider making orders for the child to spend time with her father on alternate weekends from after school Friday until before school Monday “plus on one evening during the intervening week from after school to before school the next day.” Judge Dunkley also noted at [42] of his judgment that oral evidence provided by Mr E was to a similar effect. Having considered that evidence, for reasons explained in detail under the subheading “determination” of his judgment, Judge Dunkley explained at [72] why he concluded that “spending three nights per fortnight during school terms in her father’s care from Friday after school to Monday before school, is on balance, having regard to the above reasons, in [the child’s] best interests.”
It is to be accepted that, at the time Judge Dunkley delivered his judgment, the child was very young and had limited ability to express her views. Nonetheless, in the context of the totality of the reasons provided by Judge Dunkley which I have outlined above, I am not satisfied that the view expressed by the child to Dr B that she wished to spend an additional Wednesday night every second week with the father would have led to a different outcome. The father’s reference to that statement by the child which, curiously, replicates his application, is not therefore, a change in circumstances of such significance that it justifies, in itself, or in combination with other circumstances referred to by the father, revisiting the current parenting orders.
Second contended changed circumstance
The father contended that, at the time of Judge Dunkley’s judgment delivery, there was “no evidence available about [the mother] exposing [the child] to the risk of psychological issues”. The father contends that there is such evidence, again in the form of the Family Report of Dr B, by referring to paragraph 103 of the report:
Indications are that [the child] feels safer with her mother than any other person in the family. This may be because she has overheard conversations in her mother's household, or been told things that cause her some anxiety about her safety in her father's care, specifically being taken to Country M and not being able to return to her mother. This is a very frightening scenario for a child.
The first point to make in respect to this submission is that there is no evidence that the mother has made such a statement to the child. The evidence set out in paragraph 89 of Dr B’s report is that the child “said that her grandmother told her that her father might take her to Country M and leave her there, but she (the child) knows that is not true” (Bold emphasis added).
In summary, paragraph 103 of the report of Dr B cannot reasonably be constructed as reflecting a view, on the part of Dr B, that the mother has, in the first place, told the child that she could be taken to Country M by her father and subsequently left in that country. Further, paragraph 103 cannot reasonably be constructed as evidence that Dr B was concerned that the mother has acted, or would act, in a manner that would cause psychological harm to the child. Accordingly, this is not a changed circumstance.
Third contended changed circumstance
The father contends that, at the time Judge Dunkley delivered his reasons for judgment, there had been no contact time between the child and her father for an uninterrupted period of 14 months. He contends that a change in circumstances was the fact that, in the period subsequent to August 2020, the child had spent regular time with him, including during holiday periods in accordance with the orders made by Judge Dunkley.
The fact that the child was to spend regular ongoing time with the father was specifically contemplated in both the orders of Judge Dunkley and Judge Howe. Moreover, as noted in the report of Dr B, despite the fact that the child had spent such regular time with the father, she remained concerned about spending more than three nights at one time away from her mother and in the care of the father. Accordingly, this is not a changed circumstance which, either individually or collectively, justifies revisiting the final parenting orders.
Fourth contended changed circumstance
The father contends that, as at the date of the decision of Judge Dunkley, “[the child] had no contact with her extended family in Country M for an uninterrupted period of 14 months.” Comparatively, he contends that she now has an “ongoing loving relationship” with her “three cousins, uncle and aunt in Country M, which has been regularly and increasingly developed since August 2020.” It can reasonably be inferred that, in the care of the father, the child would regularly communicate with members of the paternal family. Indeed, at [77] of his judgment, Judge Dunkley specifically acknowledged that the child would benefit “from exposure to and immersion in Country Q or Country M culture and heritage”, which she shares with her father.
The fact that the child has formed a close relationship with members of the paternal family in Country M in the period that she has been spending regular time with her father since the orders of Judge Dunkley is obviously desirable. However, it is an outcome that could reasonably be inferred by the orders made by Judge Dunkley and does not represent a change in circumstances that individually or collectively justifies revisiting the final parenting orders.
Fifth contended changed circumstance
The father contends that, at the time Judge Dunkley delivered his judgment, the child occasionally mentioned interest “about visiting overseas countries with her father”. Comparatively, the father contends that, in the period since August 2020, there has been a “significant and ongoing increase in [the child’s] interest in visiting overseas countries with her father.” The father further contends that there has been “significant and ongoing frustration in [the child] about her not having yet spent time with her father in overseas countries during school holiday periods.”
During his oral submissions at the interim hearing, the father stated that, in December 2021 when he asked the child what she wanted to do in the school holidays, the child expressed “straight away that she wanted to visit her cousins in Country M.” The father indicated that he responded to the effect of “well, we have to wait until you become 10 and see if your mother agrees to that.” The father further stated that the child’s response to that advice was that she was “very forsaken and was unwilling to wait until she was 10 years old.” In response he said;
Well, if you go down to the airport the police is going to stop us. Then she got home, when I was again in the shower, she make a drawing of her whole arm, which is like a robot, with 70 arms. I was throwing lavender spray to the police officers at the airport while we were running to the plane that would take [the child] and me to Country M.[1]
[1] Transcript 22 February 2022, p.28 lines 39-44.
It was the father’s submission that the moratorium on the child travelling overseas until she is 10 years old “is affecting [the child]” and that “this is what is increasing her frustration and if nothing is done, it will only get worse”.[2]
[2] Transcript 22 February 2022, p.29 lines 4-5.
Those conversations as reported by the father are concerning. Clearly, it is inappropriate for the father to have discussed the impact of orders made by the Court with the child, including his advice to the child that she would be arrested by police if she went to an airport, inferentially, as a result of those existing orders.
In any event, Judge Howe specifically considered the father’s application for the child to spend successive weeks in his care during the longer school holiday period, including for reasons that the father desired to take the child to Country M. Having considered that argument, her Honour explained, including by reference to the child’s views, her finding that such a prospect was beyond the child’s current level of maturity.
The father’s report of the child expressing frustration at not being able to travel with him to Country M is not, even if it occurred in the manner related by the father, a changed circumstance that justifies, in itself or in combination with the father’s other contentions, revisiting the final parenting orders.
Sixth contended change in circumstances
The father contends that, at the time of Judge Dunkley’s judgment, there was “no evidence available about [the mother] planning not to allow [the child] to travel overseas with her father”. Comparatively, the father contends that “in 2021 [the mother] confirmed there is “no way” she would allow [the child] to travel overseas with the father in the future.”
The mother’s concerns at the prospect of the father travelling overseas with the child to Country M are referred to on a number of occasions in the report of Dr B. At paragraph 20 of that report, Dr B referred to the mother’s concerns as being “a genuinely held concern”.
The father’s reference to the mother expressing ongoing concern is therefore not a change in circumstances.
Seventh contended change in circumstances
The father contended that the evidence before Judge Dunkley that there had been an “incessant exchange of highly hostile communication between the parents” has now changed. With reference to the final paragraph of Judge Dunkley’s decision at [81], it was recommended for the parties to develop “a cordial parental relationship” as “a pre-requisite before long periods of time between [the child] and her father would be in [the child]’s best interests.” The father contends that the situation has been reversed. Specifically, he contends that there has been “respectful and productive communication between the parents since immediately after the 2018–2019 summer.”
In rejecting that contention by the father, it is unnecessary to go beyond referring to the affidavits which he has filed in these proceedings which are, in and of themselves, communication of significance between the parties. In “section D” of his affidavit filed on 6 July 2021, for instance, the father refers to what he contends are the mother’s “unresolved mental – emotional issues.” At paragraph 133 of that affidavit, he has cherry picked from the evidence in the proceedings and extracts from the Family Reports’ passages which negatively reflect upon the mother. As previously noted, the father further contends, unjustifiably, that the mother has caused psychological harm to the child in telling her that the father intends to take her permanently to Country M.
At paragraph 136 of that same affidavit, the father states:
I have increased concerns about the comments [the child] could be exposed to while spending time with [the mother] and other members of [the mother’s] family, plus the negative and serious psychological and emotional impacts this exposure could be having on [the child] and/or could have in the future.
Further, the father attaches to his affidavit of 6 July 2021 copies of electronic communication sent by the mother to him which he contends are an “example of the negative impact on [the child]” of those communications. That evidence is set out in paragraphs 162 through to 170 and refers to several annexures attached to the affidavit.
In short, the evidence presented by the father himself satisfies me that the nature of the communication between the parents is far from that contemplated by Judge Dunkley as referred to above at [81] of his decision. The nature of the communication engaged in between the parents is not, therefore, one that represents a change in circumstances, let alone one that justifies revisiting the final parenting orders.
Eighth contended change in circumstances
It is the case that the evidence before Judge Dunkley was that there was, as the father states, a “total lack of collaboration between the parents”. Comparatively, the father contends that “the parents proactively and voluntarily agree on ongoing informal arrangements that allow [the child] to attend every scheduled class of extra-curricular sport activity for the whole 2021 season.” To the extent to which it has occurred, that agreement is obviously desirable. At the same time, as contended by counsel for the mother, it is evidence that the intended purpose and intent of the current orders have, to a degree, been successful.
At the same time, however, the evidence as referenced above and set out at paragraphs 162 through to 170 of the father’s affidavit filed on 6 July 2021 is evidence to the contrary.
In summary, in respect to this eighth contended change in circumstances, while aspects of the parents’ communication is encouraging, it was the intention of the final orders to encourage the parties to engage in more positive communication. Indeed, the final paragraph of the judgment of Judge Dunkley effectively implored the father to engage in ongoing respectful communication. The evidence of the father, even if taken to its highest, that there has been a degree of cooperation is therefore, not a changed circumstance which is of such a significant nature that it justifies revisiting the final parenting orders.
Ninth contended change in circumstances
It is the case as contended by the father that, at the time Judge Dunkley delivered judgment, there was an interim AVO in place issued by the Region F Local Court which named the mother as a protected person. The father correctly notes that there is currently no AVO in place after the mother’s application for an AVO was dismissed.
Again, this does not represent a change in circumstances. The father openly admits that, in the period after October 2018 and before judgment was delivered by Judge Dunkley, he engaged in what the Full Court described as “abusive email communication” with the mother. The father apologised to the mother and the Court for communicating in such a manner. Judge Dunkley specifically found, appropriately, in my view, that the father has engaged in acts of family violence towards the mother, including by way of offensive communication.
Those findings motivated Judge Dunkley to minimise the face-to-face communication between the parents. The fact that there is no longer an AVO in place does not change history and it does not represent a change in circumstances that justifies revisiting the final parenting orders.
CONCLUSION IN RESPECT TO THE FATHER’S CONTENTIONS OF CHANGED CIRCUMSTANCES
For the reasons which I have set out, even taking the father’s evidence at its highest, the evidence does not establish a change in circumstances that, when considered individually or collectively, are of such significance that it justifies revisiting the final parenting orders made by both Judge Dunkley and Judge Howe.
Accordingly, I have determined that the father’s application has no reasonable prospects of success and should be dismissed pursuant to s 45A of the Act.
Additionally in terms of the fourth consideration of balancing the evidence regarding changed circumstances against the potential detriment to the child caused by ongoing litigation, I am satisfied that the detriment to the child caused by the ongoing agitation of those issues advanced by the father, in fresh litigation, outweighs the potential benefit that would have been obtained from considering a variation in the final parenting orders.
SHOULD THE FATHER BE DECLARED A VEXATIOUS LITIGANT?
In addition to seeking a dismissal of the proceedings pursuant to s 45A of the Act, the mother seeks the following orders in the alternative:
2.The Court declares that the application filed by Mr Giordano on 6 July 2021 is either vexatious or an abuse of process.
3. That:
a.Pursuant to section 102Q of the Family Law Act, the Father be prohibited from instituting further proceedings in relation to the child X born in 2013 without first obtaining leave of the Court.
Or in the alternative:
b.Pursuant to section 64B(2)(g) of the Family Law Act, the Father be prohibited from instituting further proceedings in relation to the child X born in 2013 without first obtaining leave of the court.
The significance of making such a declaration would be the potential activation of s 102QB of the Act, which relevantly provides:
(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;
In Mbuzi v Griffith University [2016] FCAFC 10 at [99], the Court’s power to make an order under comparable legislative provisions was noted to be subject to conditions:
The first is that the relevant person “has... instituted or conducted vexatious proceedings” (which need not be the current proceeding). The second is that the vexatious proceedings have been instituted or conducted ‘frequently.
The term “vexatious proceeding” is defined in s 102Q of the Act as including:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(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.
In Lohe v Sargent [2001] QSC 386 at [42], reference was made to the general characteristics of vexatious proceedings as identified by Fitzgerald P in Re Cameron [1996] 2 QdR 218, 220 (“Re Cameron”):
Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis: see, for example, Attorney-General v. Wentworth (1988) 14 N.S.W.L.R. 481; Jones v. Skyring (1992) 66 A.L.J.R. 810; Jones v. Cusack (1992) 66 A.L.J.R. 815, and Attorney-General (N.S.W.) v. West (N.S.W. Common Law Division No. 16208 of 1992, 19 November 1992, unreported).
In other words, while I have found that the current proceedings have no reasonable prospects of success, that in itself does not answer the question as to whether the proceedings themselves are vexatious. Specifically, the authorities indicate that the Court is required to find the existence of an additional factor or factors, such as the illegitimacy of the proceedings or an ulterior motive on the part of the applicant.
While the Court has considerable concern as to the circumstances in which this matter was commenced, being a little over a month after final orders were made, it is not possible to find, to the standard required by s 140(2) of the Evidence Act 1995 (Cth), that the father was motivated, in commencing these proceedings, to harass, intimidate, control or coerce the mother. In that respect, I note reference in the decision of Judge Dunkley to the father having “a generalised anxiety disorder” which remains without effective treatment. He noted in that context at [24] that the mental health treatment provided Dr H “seems not to have borne any positive improvement for him especially in relation to his interactions with the mother.”
It was noted that the father also has a propensity to “catastrophise”, and there were several references in that decision to the obsessive manner in which the father had conducted the litigation. As I have earlier indicated, the nature and content of the affidavit material filed by the father in these proceedings and aspects of the father’s presentation is suggestive of the father having ongoing issues in that respect. In terms of the father’s presentation, I note that he generally remained calm and rational during the proceedings, however there were several instances where he became loud and animated. In those circumstances and in the absence of an updated psychiatric examination of the father to assist in determining whether mental health issues have impacted upon his conduct, I am not prepared to determine that his motivation fell within a category such as that referred to in Re Cameron.
Further, and in any event, I am not satisfied that the father has “frequently” instituted or conducted vexatious proceedings. In that respect, it has been observed that the word “frequently” involves “no numerical threshold” and the question whether a person has “frequently” instituted or conducted vexatious proceedings must be answered by reference to the circumstances of each particular case”: see Mathews v Queensland [2015] FCA 1488 at [85] per Reeves J and HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [114] per Perry J. Relevantly, the circumstances of this case are that it was the mother, rather than the father, who initiated the appeal which resulted in the matter being remitted for further hearing to another trial judge. At the same time, however, it is to be noted that, in the period subsequent to the judgment of Judge Dunkley, the father has filed several contravention applications.
The filing of multiple contravention applications by the father, in the context of the father’s obsessional traits, gives cause to consider the mother’s application for an order pursuant to s 64B(2)(g) of the Act, which would require the father to seek relief from the Court in the event that he wishes to commence future proceedings. Relevantly, that section provides that a parenting order may deal with:
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
In the circumstances of the case Sandex & Bondir (No 2) [2017] FamCAFC 130 at [11]–[12] and [31]–[32], the Full Court (Strickland, Ainslie-Wallace and Loughnan JJ) accepted the appropriateness of orders pursuant to s 64B(2)(g) of the Act restraining the making of any application under Part VII of the Act in relation to children without first making an ex parte application seeking and obtaining the leave of a judge. Such an order focuses upon the impact of ongoing litigation on the best interests of the child as opposed to whether there had been vexatiousness by one party in the conduct of the litigation. It is to be accepted, however, that those two issues may be interlinked; Cardus & Lavrick [2020] FamCA 579 at [59].
Relevant to the mother’s application, pursuant to s 64B(2)(g), in her report Dr B noted at paragraph 103 that “threats of litigation will undermine the parenting relationship.” Further, Dr B recommended at paragraph 122 that “it would assist the child if the court could minimise [the father] and [the mother] engaging in further litigation.”
The mother has given evidence as to the emotional impact of the father initiating these proceedings, in circumstances where the father had not appealed either of the orders of Judge Dunkley or the orders of Judge Howe and the mother holding the ultimate expectation that the litigation had been finalised. In that respect, I have referred to the expectation specifically noted in the judgment of Judge Howe that she expected her judgment would finalise the litigation between the parties (at [101]). The mother’s reaction is entirely reasonable and understandable.
The initiation of this litigation by the father is an example of what Judge Dunkley predicted would be the father acting in a “self-absorbed way” (at [74]). Judge Dunkley further noted at [74] that the father’s conduct and tendency to do so “impacts on the mother’s parenting and that does not benefit [the child].”
I am satisfied that ongoing litigation between these parents is likely to result in the mother experiencing ongoing stress and, as noted by Judge Dunkley, the emotional impact of ongoing disputation is not in the best interests of the child.
Having regard to those considerations, I am satisfied that it is appropriate to make the order sought by the mother pursuant to s 64B(2)(g).
CONCLUSION AND ORDERS
Having regard to all of the above, I am satisfied that orders should be made, in the terms sought by the mother, dismissing the proceedings and making an order, in the alternative form sought by the mother, restraining the father from commencing proceedings seeking a variation of the current parenting orders without leave of the Court.
In circumstances where the father has been wholly unsuccessful, I will make an order permitting the mother, if she so chooses, to file and serve written submissions in support of her application for costs within 14 days. The father will be permitted to reciprocate within a further 14 days. The parties will be restricted to making submissions of no more than two pages in that respect.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge McClelland. Associate:
Dated: 31 March 2022
18
0