Meadows and Meadows (No. 3)
[2020] FamCA 736
•9 September 2020
FAMILY COURT OF AUSTRALIA
| MEADOWS & MEADOWS (NO. 3) | [2020] FamCA 736 |
| FAMILY LAW – CHILDREN – Child related proceedings – where final parenting orders made in July 2019 – where the mother seeks a change of venue – where the mother seeks make-up time for time missed – where the mother seeks enforcement of orders for ongoing time – where the mother seeks the father disclose protection orders in relation to any person living in the home with the child – where the mother seeks a recovery order lie in the Registry if time is to recommence – where the mother seeks a stay or variation of existing final sole parental responsibility orders – where the mother has failed to comply with final orders of 2019 – where the mother has not enabled an initial period of supervised changeover to occur – where the mother cannot commence unsupervised changeovers with the child before attending supervised changeovers as per the final orders – where the child lives with the father – where there is no change in circumstances – mother’s applications dismissed. FAMILY LAW – PROPERTY – where final orders made in 2019 impel the father to pay the mother $200,000 by way of property adjustment – where the mother may refuse to receive the payment – where the mother has placed a caveat over the former matrimonial home such that the father cannot deal with the property and provide the mother with her entitlement – order for caveat to be removed – if mother does not accept monies to be held on trust in a bank account in joint names for the wife when she chooses to access it. |
| Family Law Act 1975 (Cth) |
| King & Finneran [2001] FamCA 344 Meadows & Meadows (No. 2) [2019] FamCA 491 Meadows & Meadows (No. 4) [2019] FamCA 745 Meadows & Meadows (No. 2) [2020] FamCA 325 Marsden & Winch (2009) 42 Fam LR 1 Rice & Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Meadows |
| RESPONDENT: | Mr Meadows |
| FILE NUMBER: | PAC | 3509 | of | 2013 |
| DATE DELIVERED: | 9 September 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 6 July 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self-Represented Litigant |
| COUNSEL FOR THE RESPONDENT: | Self-Represented Litigant |
Orders
The wife’s response to the husband’s application that the caveat over the property at O Street, Suburb P not be removed is dismissed.
If the wife fails to sign and return any document provided to her by the husband within 7 days of him sending same to her to cause a discharge of the caveat lodged over the property at O Street, Suburb P a Registrar of the Family Court of Australia in Sydney is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all documents in the name of the wife and do such things necessary to cause the discharge of same.
The wife is injuncted and restrained from lodging any further caveats over the title of the property referred to in Order 1.
The husband has leave to serve a copy of these Orders on NSW Land Registry Services.
The husband is to comply with order 19 of Justice Baumann’s Orders of 30 July 2019 and pay the wife $200,000 within 60 days of the date of delivery of these orders and if he is unable so to do the machinery provisions in relation to payment of monies to the wife will apply being orders 25 and 26.
In the event the wife will not accept monies to be paid to her in accordance with order 5 herein I direct the husband place those monies into a bank account of his choosing in trust for he and the wife with both to sign to access or deal with the account.
Thereafter the husband is to notify the wife in writing of the bank chosen in accordance with order 6 herein and the account details. The husband is to forthwith comply with any written request by the wife to withdraw those funds and/or pay as she directs.
Any interest accrued on the funds so deposited is to be equally shared between the parties with such calculation to be determined by the husband.
Any costs associated with the husband complying with order 6 herein is to be borne by the wife and deducted from monies due and payable to the wife pursuant to His Honours orders of 30 July 2019 and as calculated by the husband.
The mother’s application for make-up time, both in relation to regular weekend time and on Mother’s Day 2020 is dismissed.
The mother’s application for enforcement of regular time is dismissed.
The father agrees to obtain an optometrist’s report for his daughter and forward that report to the mother upon receipt and he is to so do within 14 days of the date of delivery of these orders.
The mother’s application that the child be the subject of a further psychological assessment and report is dismissed.
The mother’s application for disclosure of any AVOs, DVOs or any other protection orders and the like in relation to the father or anyone in the father’s household is dismissed.
The mother’s application for a recovery order to issue and to lie in the Registry is dismissed.
The mother’s application to re-open the parenting proceedings is dismissed as is the mother’s application to stay or vary the sole parental responsibility orders made by Justice Baumann on 30 July 2019.
The mother’s change of venue application is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Meadows & Meadows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 3509 of 2013
| Ms Meadows |
Applicant
And
| Mr Meadows |
Respondent
REASONS FOR JUDGMENT
Background
This judgment in the matter of Meadows deals with outstanding issues raised by both parties as at the hearing on 6 July 2020 and as particularised at paragraph 6.
The mother is Ms Meadows, born … 1981. The mother is 39 years old.
The father is Mr Meadows, born … 1979. The father is 41 years old.
The subject child is B, born … 2011. B is 8 years old.
On 6 July 2020 I delivered an oral judgment in relation to the mother’s application to injunct the father from permitting the child, B, to attend her Reconciliation, Communion and Confirmation at the HHH Church attached to the school which B attends. The mother’s application for the injunction was dismissed. This is a written judgment in relation to the remaining issues heard on 6 July 2020 and yet to be determined by way of judgment. I said on 6 July 2020 I would deliver a separate judgment in relation to the father’s application that the mother be declared a vexatious litigant. That application will be the subject of a separate written judgment.
The matters dealt with in this written judgment, are as follows:
For the mother:
i)An application to change the venue of these proceedings to Parramatta. I indicated I would leave that application in abeyance until such time as I determined the other matters as there may not be any application on foot once I have finalised the hearings before me;
ii)Secondly, make up time for the mother for time missed with her child on Mother’s Day;
iii)Make up time for regular time she has missed;
iv)Enforcement of orders for ongoing time pursuant to Justice Baumann’s Orders of 30 July 2019 and 19 September 2019;
v)The making of an optometry appointment for what the mother says is difficulty with B’s sight or eyes. The father agreed that he would have B attend an optometrist for an eye test and provide the mother with a copy of the report although, in his view, this was not necessary. The father has made the concession and this may assuage the mother’s concerns in this regard;
vi)That B be subjected to a further psychological assessment and a report;
vii)That the father disclose protection orders in relation to any person living in his home with B or any AVO or any involvement of B with any family consultants;
viii)A stay or variation of the sole parental responsibility order made by Justice Baumann, being Order 2 of the Orders made 30 July 2019; and
ix)If I do order time to recommence between the child and her mother, a recovery order to lie to ensure this happens.
x)Although not an application initially listed when I listed this matter on 18 June 2020 for hearing on 6 July 2020, the mother ultimately submitted to me that I should, in some way, re-open the orders of his Honour Justice Baumann so that matters such as a variation or a stay of his Honour’s sole parental responsibility order could be made.
xi)The mother’s response to the father’s application that she remove a caveat over the former matrimonial home which application the mother resisted.
For the father:
xii)An application to remove the caveat placed over the former matrimonial home which the mother has placed thereon; and
xiii)The father’s application to have the mother declared a vexatious litigant which I will deal with in a separate judgment.
Going initially to the first application of the father’s being an application for the mother to remove a caveat placed over the former matrimonial home. Some facts require highlighting at this point.
Justice Baumann’s Orders and Judgment of 30 July 2019 and 19 September 2019 were subject to appeal by the mother, which appeal was dismissed by the Full Court on 26 May 2020 including an application by the mother that the mother be able to adduce further evidence. This then results in the extant orders being the orders of Justice Baumann made on 30 July 2019 and 19 September 2019.
Order 19 of his Honour’s orders of 30 July 2019 impel the father to pay to the mother the sum of $200,000 by way of property adjustment with such sum to be paid within 60 days of the order being made. That time frame could not be adhered to by the father due to the appeal filed by the mother.
The father is eager to pay his former wife her entitlement.
Documents Read
For the father:
(a) Application in a Case filed by the father on 12 June 2020;
(b)Two affidavits filed 3 July 2020 and 12 June 2020 and the annexures contained therein.
For the mother:
(c) Affidavit filed 6 July 2020; her annexures A through to Z;
(d)Affidavit and Application in a Case, initially filed seeking the injunctive orders concerning B’s Communion on 28 February 2020, and an additional affidavit of her father filed 16 March 2020;
(e) Affidavit of the mother filed 17 May 2020;
(f)The judgments and orders of Justice Baumann of 30 July 2019 and 19 September 2019;
(g) The order of the Full Court dated 26 May 2020;
(h)Email letter from the Eastern Appeals Division, Family Court dated 5 June 2020;
(i) The mother’s email of 22 June 2020 to the Court;
(j)The contravention judgment of 28 April 2020 wherein I dismissed the mother’s contravention application against the father;
(k)Written summary of argument of the mother of 11 May 2020 and 29 May 2020; and
(l) Oral submissions.
The father is desirous to comply with the Court’s orders and to pay the mother the money to which she is entitled pursuant to his Honour’s orders. In his affidavit, sworn 3 July 2020, he says at paragraph 15:
I rely upon my application and affidavit filed 12 June 2020.
Given that a final hearing has been heard, judgment delivered, the Mother’s appeal was heard and dismissed, I consider that I should now be free to deal with my property as I wish.
My wife Ms F and I have a growing family and are currently living in a three bedroom house. We are currently exploring our options to either make our home larger or sell the property at Suburb P…which is solely in my name.
There is some difficulty in doing this while a caveat remains over the property.
In his oral evidence he said “I cannot refinance while a caveat remains on my property.”
The husband asks that the caveat be removed and the mother be injuncted from placing any further caveats on the title. If the mother refuses the payment to her, that money be paid into an account held by the Court. The Court has no capacity to hold money for others however I can make an order the money be paid into an account in joint names to be disbursed to the mother upon her written request to the bank to so do and as agreed to in writing by the father.
At paragraph 28 of his affidavit filed 12 June 2020 the father says:
On 2 June 2020 the Mother wrote to the Eastern Appeals Region where she complained about a possible fault in the judgment by the Full Court.
At paragraph 38:
The mother holds a caveat over my property at O Street, Suburb P.
39. The mother has previously refused to remove the caveat until the outcome of the appeal.
40. On 29 May 2020 I emailed the Mother and forwarded her an email which was sent to her 8 August 2019 in relation to having the caveat removed so that I can refinance in order to pay the Mother, the settlement sum of $200,000. The Mother’s response indicated to me that she would not remove the caveat and that she wanted to continue with further litigation.
41. Given that the mother’s appeal was dismissed, it is my understanding that I am to pay the mother the settlement sum of $200,000, I can only do that if I am able to refinance [the property] so that I can make that payment to her. I cannot refinance while a caveat remains on my property.
The mother’s objection to removing a caveat which, at law, she has no legal right or entitlement to maintain given that a Judge of this Court has made a final decision in relation to her entitlement, commences at paragraph 407 of her affidavit filed 6 July 2020:
407.There is a caveat on the property at present and I do not seek to lift this caveat as Mr Meadows has indicated he seeks to breach the orders of the court by selling the property.
408. There is no official appeals orders that have been handed down as there is no seal of the court on the documents or the orders and the orders have not been provided to the parties.
409. The Court would need to give serious regard as to the fact that question[s] ha[ve] been raised as to the validity of the reasons of judgment and whether these are official and in which the AFP has also been contacted in regards to what appears to be issues that have been had on ComCourts and with documents hacking and no response received as of yet it is unknown what investigations, if any, the AFP are having and how much more time the complaints function of the Court will require in reviewing this situation.
The mother says at paragraph 411 that there is a legitimate complaint filed and the information is being reviewed:
411. Complaints are directed to the Chief Justice and it is the Chief Justice who must make decisions whether these are delegation activities or not in regard to the handling of complaints and given the fact that I have been advised that the complaints department has received the documents and requires further time; for an order to be made at this coming hearing requesting me to lift my caveat would be unreasonable and an injustice to a legitimate ability of clients of the Court to raise [a] complaint and has the potential to cause difficulties for the Court should those orders and reasons of judgment not be correct given [the husband] has only now also advised [he] wants to sell the property after advising during final orders trial he was seeking to live in the property…which is why orders were made in a certain manner.
412. Mr Meadows’ new admittances I will be advising the complaints department as I believe this also adds to the issue in that intentions and understanding of the issues of the case and its relevance to law may have been impacted; that’s an issue for them to decipher as to its relevance to the larger complaint made.
Unfortunately the mother has seriously misunderstood the appeals process. I said to the mother, “Ma’am, your complaint about the Full Court’s judgment is irrelevant to the decision I am tasked to make. There is a judgment of his Honour Baumann J, which must be enforced. If you are unhappy with the decision of the Full Court the only recourse you have to change that decision is to file a special leave application in the High Court.” The mother was clear that I was in error and that each the Chief Justice and the Attorney-General had capacity to vary, change or otherwise interfere with the decision of the Full Court. The mother is entirely wrong and she has been so informed of this in a letter sent to her, which she tendered at trial, dated 5 June 2020 from the Appeals Eastern Region Registrar which reads as follows:
Dear Ms Meadows,
I refer to your email sent to the Eastern Appeals Registry on 28 May and 2 June 2020. The orders and reasons for judgment of the Full Court are final. Any challenge to those orders must be made in the High Court of Australia. Please seek legal advice if you intend to further pursue the matters raised in your emails. You are not permitted to contact chambers. I note that your appeals are now finalised and no further correspondence will be entered into in relation to them.
That is a correct statement of the law.
Further there is no longer any restraint on the husband selling or dealing with the property particularly where to do so would ensure the mother received her entitlement. Once his Honour made his final orders, the interim orders were effectively discharged and it was disingenuous of the mother to claim the father would be in breach of the Court’s orders in selling the property or otherwise dealing with it and that this supported her resistance to removing the caveat and particularly where order 25 permitted him so to do to pay her, her entitlement to property.
Therefore the mother’s application that the caveat not be removed is without merit, is vexatious and is dismissed. As the mother has taken such an egregious position on this issue, in order for the father to be able comply with his obligations under the order and not have to return to Court I will be as detailed as I can in how he is to carry out his obligations and cover as many scenarios as I am able.
Further, I will make a section 106A order which is that a Registrar of this Court will forthwith sign any document provided to them by the father seeking to discharge the caveat lodged over the property in his name at O Street, Suburb P if the mother fails to comply with the orders I will make on this issue.
In addition, I will injunct and restrain the mother from lodging any further caveats over the title of that property and provide that the father serve a copy of these orders on NSW Land Registry Services to ensure that they too understand the injunction and restraint that this Court has placed on the mother.
I will order the father to comply with his Honour’s order of 30 July 2019 and pay the mother $200,000 within 60 days of the delivery of this judgment. The father raised an issue that the mother may not accept the payment and sought monies be held by the Court.
This Court does not have that capacity however such a scenario is a real concern for the father and the Court. In the event the mother does not accept payment of the $200,000, I will direct the father to place that money in a bank account of his choosing in trust for himself and the mother, with each to sign in order for that account to be accessed or dealt with. The father will notify the mother in writing of the account details and that he will forthwith comply with any request by her to sign a withdrawal of those funds.
Additionally, any costs associated with setting up this account will be deducted from the mother’s entitlement as calculated by the father. Further, any interest accrued as calculated by the father will be equally shared.
Once the father has paid this money to the mother or placed the money in a trust account with a bank, he is free to sell the property.
Going now to the remainder of the mother’s various applications. I will bundle together the many applications for make-up time for Mother’s Day missed, make up time for regular time missed, and enforcement of regular time pursuant to Justice Baumann’s Orders of 30 July 2019 and 19 September 2019.
The mother is of the view that in reading his Honour’s orders being orders of 30 July and 19 September 2019 together, that she and B should be spending time together each second Saturday from 10 am to 6 pm with a changeover to occur at UU Town Service Station.
The mother is sadly mistaken in her interpretation of his Honour’s orders. As I said in the judgment I delivered on 28 April 2020 in relation to the contravention application at paragraph 23: [1]
23. Upon a strict reading of his Honour’s orders of 30 July 2019, the child and mother should now be spending time each second Saturday from 10 am to 6 pm, and, pursuant to his amended Orders of 19 September 2019, the changeover for B to come into her mother’s care should be occurring at UU Town service station.
24. The father agrees and cannot escape his position clearly set out in an SMS to the mother attached to her affidavit in support of the contravention of 11 February 2020 and this is his position, and I will read that SMS message out:
Hi Ms Meadows. As I have previously advised you, given that you have failed to comply with orders 4(a), 4(b), 5 and 6, I don’t believe that you can just skip those orders. So I will not be bringing B to UU Town this Saturday. If you would like to see B then I suggest that you contact the Suburb MM Children’s Contact Centre as per the orders.
[1]Meadows & Meadows (No.2) [2020] FamCA 352.
Then again from paragraphs 26 through to 40 I said:
26. The mother argues the father has thereby breached his Honour’s Order of 30 July 2019, being order 4(c), and 19 September 2019, being Order 1(c) because he has not brought the child to the UU Town service station.
27. The father’s position is that the carefully and thoughtfully structured regime of time his Honour crafted has not yet begun as the mother has refused, chose not to, could not, whatever words you wish to use, complied with his Honour’s Orders of 30 July 2019, being orders 4(a) and (b) and commenced to spend time with the child by way of changeover occurring at the Suburb MM Contact Centre for a period of six months. The father argues that as the mother has failed to commence time with the child on an increasing regime of time by way of changeover occurring at the Suburb MM Contact Centre for a period of six months the regime of time has not yet commenced, and, therefore, the father cannot quickly go to, or go to, or could be in breach of Order 4(c) of his Honour’s Orders because the mother’s time with the child, in accordance with his Honour’s Orders, has yet to commence.
28. The mother cannot escape the fact that she has not attended the contact centre for changeover in accordance with his Honour’s Orders and agreed this was correct in Court.
29. The father says the Orders cascade and one Order follows the other, Order 4(a), then Order 4(b), then Order 4(c), and they cannot be jumped. They must be carried out in accordance with the regime of time and the structure that his Honour put in place.
30. The mother also agreed that this was how the Orders read. Her argument, however, was that she had filed an Appeal against his Honour’s Orders almost as soon as they were delivered; that she went before his Honour in September 2019 where he said, at paragraph 15 of that Judgment:
Taking on board some of the submissions the Court heard today, the Court raised as a proposition for submission whether when the child spends time with the mother under 4(c) and (d) takes effect, noting that time for day from 10 am to 6 pm under 4(c) will not take effect until six months from the date of the orders, which means, effectively, the beginning of the next school year in or about January/February 2020, whether it will be better for the changeover place to change.
31. So the mother submitted to me that his Honour, by that comment in paragraph 15, was aware that at six months from the date of his Orders, basically February this year, the mother and child would be spending a day together, changeover occurring in an unsupervised setting at UU Town service station.
32. Secondly, the mother said his Honour knew at that time that the mother had not carried out Orders 4(a) and (b), said at paragraphs 19 and 20 of this Judgment that he would not amend Orders 4(a) and 4(b), that it is clear he knew this.
33. What his Honour says at paragraph 18 is this:
For the reasons which I gave that seem to me to be a significantly-important issue where there had been no time between B and her mother for some time because, for the reasons again referred to on my reasons for judgment, the mother refused to facilitate a supervised environment to spend time with B. When the order was made to commence unsupervised time of four hours, it was well within the understanding of the court that length of time would not be sufficient to allow the mother to return to her home.
34. Paragraph 19:
I was anxious to provide an opportunity and hopefully an incentive to the mother to exercise unsupervised time with the child when she had refused to exercise, for the reasons she articulated, supervised time. It was always anticipated by the Court that if the time was to occur between 10 and 2 then it would be, in my view, necessary for that time to occur in and around the Suburb MM area. Because the Suburb MM Children’s Contact Centre is available for those hours, I see no basis to amend paragraph 4, and I do not do so.
35. Paragraph 20:
The same reason applies to order 4(b), and I do not propose to change it to 9.30 to 3.30 pm. In respect of orders (c) and (d), I propose to amend the orders to provide that when paragraph 4(c) operates – and 4(d) will first operate in May 2020 – changeovers will take place at the service centre at UU Town.
36. The mother submitted to me that his Honour intended or knew or was content or understood that the mother and child would instantly leapfrog to Order 4(c) and spend time from 10 to 6 with changeover at UU Town in an unsupervised setting when the child and mother had not yet commenced any time, be it the initial time his Honour Order[ed] in his original Judgment from 10 to 2 for three calendar months each Saturday then, for a period of three calendar months, each second Saturday from 10 to 4 with changeover to be supervised at the Suburb MM Contact Centre.
37. The mother is mistaken and has not read correctly what his Honour reasoned and what his reasons were, and this was pointed out to me very well by Ms Smythe on behalf of the husband. Going to the stay application [before His Honour at] paragraph 16 –the decision of 24 October 2019 – his Honour says this, and this encapsulates the submission of the father:
The effects of the orders were that after the initial period of six months, where changeovers were to occur at the Suburb MM Children’s Contact Centre, the changeovers thereafter, which included every second Saturday from 10 to 6 unsupervised, would occur at the service station at UU Town. The mother says, as a result of a change of her circumstances, she is unable to afford or attend the Suburb MM Children’s Contact Centre. Her application to vary orders which I have already indicated I cannot deal with suggests other place of changeover.
38. What his Honour had set out there at paragraph 16 was the basis of his original reasoning, being that after an initial period of the mother and child spending increasing periods of time together on a Saturday facilitated by changeover at a supervised contact centre the child and mother would go to unsupervised changeovers for a whole day of time, and he amended changeover to the UU Town service station. The fact of the matter is the mother has never attended for a supervised changeover on any occasion.
39. In his decision of 19 September 2019, the variation Judgment, at paragraph 19 – and I have read this out and will read it out again as it is important, His Honour says, importantly:
I was anxious to provide an opportunity and hopefully an incentive to the mother to exercise unsupervised time with the child when she had refused to exercise, for the reasons she articulated, supervised time.
40. His Honour gave her that opportunity inconsistently with the Independent Children’s Lawyer and father’s position that there should be supervised time. He said, “No, it will be unsupervised time but that the changeover will be supervised for a period of six months.” None of this has occurred due to the mother’s refusal, failure, inability, for whatever reason, to attend on any occasion at the Suburb MM Contact Centre.
At paragraph 41 I said:
In his Judgment of 30 July 2019, his Honour said he would not contemplate overnight time at this stage but that if the Orders he has pronounced are complied with and the matter proceeds well that, perhaps, this can be something that can occur in the future
At paragraph 74(c) of his Honour’s judgment of 30 July 2019 he states:
I accept that if the orders I pronounce are complied with fully and there is no evidence that the mother has made any denigrating comments to the child as she (and the father) are restrained from doing, then overnight contact after a period of 12 months could be contemplated by the parties. [2]
[2]Meadows & Meadows (No. 2) [2019] FamCA 491.
At paragraph 42 of my judgment I state:
[His Honour] put in place some mechanism to try and assist with such discussion on this issue. Clearly, his Honour’s intention was for there to be a slow and gradual increase in the child’s time with her mother, initially changeover to be supervised but only changeover, not the mother’s time, at the Suburb MM Children’s Contact Centre and after a period of six months no supervised changeover and a full day of time with the mother and the child. It is the mother who has failed to comply with his Honour’s orders, not the father.[3]
[3] Above, note 1.
Then at paragraph 43 I state:
To assert that because the mother chose not to do the slow, gradual increase in time in a supervised changeover setting for a period of six months that she can now leapfrog to a full day without any supervised setting changeover or any runs on the board of how changeover goes and how she and the child react and how the child reacts with her would make a mockery of his Honour’s carefully-crafted and well-reasoned Orders and would make a mockery of the clear intention behind his Honour’s Orders.[4]
[4] Above, note 1.
The mother is clear and has said to me on many occasions in Court, during the contravention hearing and in these proceedings today, she will not attend at any supervised contact centre. The mother will not attend at any supervised changeover at all and she refuses to go to Suburb MM. Justice Baumann’s decision was equally clear at paragraph 74(c), “if the orders I pronounce are complied with fully,” and they have not been by the mother.
The mother discovered that the contact centre had closed due to COVID-19 in about March 2020 and I accept there were difficulties with supervised changeovers occurring in accordance with his Honour’s orders in March 2020. That event does not explain the mother’s refusal to attend the Suburb MM Children’s Contact Centre earlier as his Honour’s orders were delivered in July 2019, and the mother has had ample time to engage in this process. Had she done so it may well be that she would now be spending a day each alternate week with her daughter in the absence of any supervised changeovers. The mother has simply refused to engage with the contact centre at any time or comply with the final orders in order to enable an initial period of supervised changeover to occur and recommence face-to-face her relationship with her daughter. The mother has continued to refuse to do so.
The father was clear in his affidavit of 12 June 2020 that he had made enquiries about the mother’s time starting with the child in accordance with his Honour’s orders at paragraph 17:
The mother has recently discovered that the Contact Centre has closed due to COVID-19 restrictions and has used this as an excuse to attempt to skip orders 4(a) and 4(b) and move to changeover being at UU Town. I contacted the Contact Centre on 29 May 2020 and have been informed that as restrictions are easing due to COVID-19 that the Centre is looking [to return] to offering a face to face service in mid-late June although no exact date has been set yet. Mr PPP from the Centre has recommended that should we be interested in using the service that we should submit a renewed application. Should the Mother [choose] to comply with order 5 and 6 of the Orders made 30 July 2019 then I will promptly submit a renewed application with the Centre.
At the hearing before his Honour the mother claimed she could not afford to travel to Suburb MM and would not travel to Suburb MM as Suburb MM holds fears for her. These issues were raised before his Honour and he took them into account yet made the orders he did despite her exhortations to the contrary. As the father succinctly says at paragraph 16 of his affidavit filed 12 June 2020:
The Mother has chosen not to comply with Final Orders in order to have face to face time with B.
It is the mother who has failed to comply with his Honour’s orders, not the father, and to persist with these types of applications in light of the findings made by his Honour and by me in the contravention hearing is an abuse of process by the mother and is vexatious conduct. That is the sadness in this matter. It is the mother’s choice to not comply with his Honour’s orders that has led to the sad situation of this child not spending time with her mother for two and a half years. In those circumstances, the mother’s application for make-up time for Mother’s Day time missed, make-up time for regular time missed and enforcement of regular time must be dismissed as she is the author of these failures which has resulted in her spending no time with her child and, most importantly, B spending no time with her. This sad state of affairs is a direct consequence of her failure to comply with his Honour’s orders.
The mother argued that Mother’s Day was a special day and had nothing to do with the rest of his Honour’s orders. I reject that submission. His Honour would have contemplated that the mother would have been, by May 2020, well on her way to spending day time with her daughter without the need for a supervised changeover. B’s time with her mother is yet to commence. The mother cannot simply leapfrog to an order she chooses to comply with and ignore compliance with an order she chooses not to comply with and this is what she has done. Thus, the mother’s application for make-up time for Mother’s Day is also dismissed. This was an application that was doomed to fail had the mother read and accepted the findings I made in the contravention judgement.
The father has agreed to obtain an optometrist’s report for his daughter and forward the mother the results and I am confident he will do so and I will so order.
This Court will not order a further psychological report for this child when there is no live issue on foot as between the parents in terms of with whom she should live and time she should spend. That decision was made by his Honour in July 2019 and upheld by the Full Court in May 2020. To do so would be an abuse of this child. This application was without merit and was also vexatious.
The father has nothing to disclose in relation to protection orders, AVOs or involvement of any one in his family, including the child, with the Department of Communities and Justice or this Court as the mother has not made out a case or provided any evidence justifying a Court so ordering. Therefore the mother’s application for this disclosure is without merit. This application was an abuse of process, without merit and vexatious.
I will not make an order for a recovery order to lie. It is the mother who must comply with orders, not the father and once this occurs, her time with her daughter face to face can commence. This application was doomed to failure and was an abuse of process and vexatious.
I have found the mother’s applications determined in this judgment at paragraphs 23, 42, 43, 45, 46, and 47 were vexatious and in some aspects also an abuse of process and without merit. In using the term vexatious I am not determining whether the mother’s applications are vexatious within the meaning of section 102QA(1) of the Family Law Act 1975 (Cth) (“the Act”) as this is a determination for a separate judgment.
The mother sought that I vary his Honour’s orders by re-opening the matter either in total or in the limited sense of staying or varying the sole parental responsibility order. I will not entertain re-opening the matter on the evidence before me.
There are principles in this Court that, before a final parenting order concerning a child is to re-opened, there must be a substantial change in either the child or the parents’ circumstances, or some other important significant factor weighing on a judge’s discretion that would cause them to re-open a parenting matter.
Cases for this proposition, often called the rule in Rice & Asplund (1979) FLC 90-725, also include King & Finneran [2001] FamCA 344 and Marsden & Winch (2009) 42 Fam LR 1. The principle is sound, and is focussed on the child’s best interests. This matter was finally dealt with just 12 months ago and the appeal process was finalised just over two months ago. In those circumstances, unless the mother had brought to me a change in circumstances, I will not order the proceedings be re-opened or interfere with a fundamental order of his Honour. The sad reality for B is that there has been no change in circumstances since his Honour delivered his judgment in that she is still not spending any face to face time with her mother. The sole parental responsibility order has no impact on the child and mother not spending face to face time. That sadness lies at the feet of the mother.
Given B lives with her father full time and he provides all her practical and day to day care he is the one who must be able to exercise this important parental responsibility. To do otherwise would expose the child to risk of her needs potentially not being met by the parent who solely parents her.
At the time his Honour delivered his judgment, the mother was not spending time with the child as Justice Le Poer Trench had made interim orders on 14 November 2017 that her time with the child be supervised and she failed to comply with those orders. Thus, sadly there has been no change in any circumstance for B since Justice Baumann delivered his judgment. B is spending no face-to-face time with her mother and is only communicating with her mother via Skype/Facetime which is ongoing.
I cannot see a change in circumstances sufficient to warrant re-opening this matter within 12 months of a final hearing. Thus, the mother has failed to establish a basis by which I could exercise my discretion to re-open the matter as there has been no change, let alone a substantial change, to B’s care since his Honour made his final decision and since her appeal against his Honour’s decision was dismissed in May 2020. I see no other reason at this time which would impact upon my discretion to re-open the parenting matter. This was a vexatious application for the mother to bring in light of these facts and was unfortunately more about the mother’s needs than the child’s needs.
For these reasons this application along with all the applications dealt with in this judgment including the mother’s response to the father’s application resisting removal of the caveat will be dismissed.
Having dismissed all the proceedings there is simply no proceedings which can be transferred to any other registry and the mother’s application to transfer these proceedings to the Parramatta Registry of the Family Court of Australia is dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 9 September 2020.
Associate:
Date: 9 September 2020
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