Vanetti & Harrison

Case [2025] FedCFamC1F 162

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Vanetti & Harrison [2025] FedCFamC1F 162

File number: MLC 10766 of 2024
Judgment of: MCNAB J
Date of judgment: 14 March 2025
Catchwords: FAMILY LAW – PARENTING – Where the mother seeks to reconsider final parenting orders – Where the father seeks dismissal of the mother’s application pursuant to s 65DAAA of the Family Law Act 1975 (Cth) – Where final orders were made in July 2023 – Where there has not been a significant change of circumstances – Where, in any case, it is not in the best interests of the children for the final parenting orders to be reconsidered – Where the mother largely seeks to reagitate issues that were raised in the initial proceedings – Where the mother has been unequivocal in her evidence that she will continue prosecuting applications until the orders she seeks are made – Application dismissed – Harmful proceedings orders made.
Legislation:

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAAA, 102Q, 102QAC, 102QB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.27

Cases cited:

Carlyon & Graham [2024] FedCFamC1F 443

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210

Radecki & Radecki [2024] FedCFamC1A 246

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

Vanetti & Harrison (No 2) [2023] FedCFamC1F 563

Vanetti & Harrison (No 3) [2023] FedCFamC1F 698

Vanetti & Harrison [2023] FedCFamC1A 180

Division: Division 1 First Instance
Number of paragraphs: 83
Date of hearing: Matter determined on the papers (mentioned on 25 February 2025)
Place: Melbourne
Counsel for the Applicant: Litigant in person
Counsel for the Respondent: Ms Tiernan
Solicitor for the Respondent: Melbourne Family Lawyers

ORDERS

MLC 10766 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS VANETTI

Applicant
AND:

MR HARRISON

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

14 MARCH 2025

THE COURT ORDERS THAT:

1.The Amended Initiating Application filed 12 October 2024 be dismissed.

2.Pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth) (“the Act”) the mother MS VANETTI is prohibited from instituting proceedings under the Act against the respondent MR HARRISON without the leave of the Court under s 102QAG of the Act.

3.Pursuant to s 102QAC(7) of the Act, in the event that MS VANETTI makes an application under s 102QAE of the Act for leave to institute proceedings against MR HARRISON, MR HARRISON is not to be notified that:

(a)an application has been made; and/or

(b)if the application is dismissed – that the application has been dismissed.

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…

Continue reading Vanetti & Harrison

Sign in free to access the full text

Details
AGLC
Vanetti & Harrison [2025] FedCFamC1F 162
Case
[2025] FedCFamC1F 162
Decision Date

CaseChat Overview and Summary

The case of Vanetti & Harrison involves a dispute between Ms Vanetti, the mother, and Mr Harrison, the father, concerning the reconsideration of final parenting orders made on 12 July 2023 by Bennett J. Ms Vanetti filed an Initiating Application on 29 August 2024, seeking reconsideration of these orders, which were made in July 2023. The matter was eventually transferred to the Federal Circuit and Family Court of Australia (Division 1) and listed for a Case Management Hearing on 13 December 2024. The mother, appearing as a litigant in person, agreed to have the matter determined on the papers. Mr Harrison opposed the application and sought a harmful proceedings order against Ms Vanetti.

The central legal issue before the court was whether the final parenting orders should be reconsidered under s 65DAAA of the Family Law Act 1975 (Cth). This provision requires the court to consider whether there has been a significant change of circumstances since the final parenting order was made and whether it is in the best interests of the child for the order to be reconsidered. Additionally, the court needed to determine whether Ms Vanetti's application was vexatious and, if so, whether a harmful proceedings order should be made under s 102QAC of the Act.

The court found that there had not been a significant change of circumstances since the final parenting orders were made. Ms Vanetti's primary argument was that the father did not consult with her before making decisions regarding the children's education, specifically the transition of one child to full-time schooling. However, the court observed that the father had indeed consulted with the school and had made a well-considered decision. Furthermore, the court noted that Ms Vanetti had been largely reagitating issues that were already considered in the initial proceedings. The court also found that it was not in the best interests of the children for the final parenting orders to be reconsidered. Additionally, Ms Vanetti had been unequivocal in her evidence that she would continue to pursue further applications until she achieved the orders she desired, which the court deemed indicative of vexatious conduct.

Based on these findings, the court dismissed the application for reconsideration of the final parenting orders. The court also made a harmful proceedings order under s 102QAC of the Act, prohibiting Ms Vanetti from instituting further proceedings against Mr Harrison without the leave of the court. In the event that Ms Vanetti applies for leave to institute proceedings, Mr Harrison is not to be notified of the application or its dismissal.

The final orders of the court were that the application be dismissed and that Ms Vanetti be prohibited from instituting further proceedings against Mr Harrison without leave of the court. Additionally, Mr Harrison is not to be notified of any such application or its dismissal if it occurs.

Orders

Orders of the court

MLC 10766 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS VANETTI

Applicant

AND:

MR HARRISON

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

14 MARCH 2025

THE COURT ORDERS THAT:

1. The Amended Initiating Application filed 12 October 2024 be dismissed.

2. Pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth) (“the Act”) the mother MS VANETTI is prohibited from instituting proceedings under the Act against the respondent MR HARRISON without the leave of the Court under s 102QAG of the Act.

3. Pursuant to s 102QAC(7) of the Act, in the event that MS VANETTI makes an application under s 102QAE of the Act for leave to institute proceedings against MR HARRISON, MR HARRISON is not to be notified that:

(a) an application has been made; and/or

(b) if the application is dismissed – that the application has been dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

This matter relates to the parenting arrangements for the children X born 2014 and Y born 2017 (“the children”) between the applicant mother, Ms Vanetti born 1979, and the respondent father, Mr Harrison born 1977. BACKGROUND The mother filed an Initiating Application on 29 August 2024 (amended 12 October 2024), seeking for the final parenting orders made on 12 July 2023 by Bennett J to be reconsidered. The matter was listed for hearing on 4 November 2024 before Judicial Registrar Taylor where the matter was referred to the National Assessment Team for consideration of transferring the matter to the Federal Circuit and Family Court of Australia (Division 1). On 6 November 2024, the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1) by Deputy Registrar Brun pursuant to s 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and orders were made for the filing of material with the matter being listed before Alstergren CJ for a Compliance and Readiness Hearing on 13 November 2024. On 13 November 2024, orders were made for the matter to be listed before myself on 13 December 2024, along with various directions. The Court was unable to hear the matter on 13 December 2024 and consequently the matter was listed to 3 December 2024 for a Case Management Hearing to determine an appropriate hearing date. At the Case Management Hearing, and after discussions with the mother who appeared as a litigant in person, the parties agreed that in lieu of a further hearing date they wished for the matter to be determined on the papers. The mother was granted leave to rely on her affidavit filed 28 November 2024 and, through correspondence with my chambers and with consent of the father, her Outline of Case filed 9 December 2024.Hearing before Bennett J The initial proceedings were commenced by the mother in October 2019 and the matter was heard over 10 days before Bennett J in 2022, whereby her Honour delivered judgment on 12 July 2023 making the following final parenting and property orders:…2Parental responsibility for [X] born [...] 2014 and [Y] born […] 2017 (together, “the children”) be allocated between the parents in the following manner:(a)The father have sole parental responsibility for the children in relation to:(i) the children’s health; and(ii) the children’s education;noting the father shall consult with the mother in relation to any issues arising in relation to the children’s health and/or education and the parties shall make a genuine effort to come to a joint decision about any such issues however if no agreement is reached, then the father shall make the final decision and advise the mother in writing of any such decision.(b)The parents otherwise have equal shared parental responsibility in relation to all other matters excluding the children’s health and the children’s education.3The children live with the father.4The father provide a copy of any report by a medical practitioner or allied health professional about either or both of the children to the mother promptly on receipt.5 The children spend time with the mother as follows:(a) Commencing immediately:(i)each Thursday from the conclusion of school or 2:00 pm if a non-school day until 6:00 pm on Friday; and(ii)each alternate Sunday from 10:00 am until 6:00 pm.(b) Commencing October 2023:(i)each Thursday from the conclusion of school or 2:00 pm if a non-school day until 9am on Saturday; and(ii)each alternate Sunday from 10:00 am until 6:00 pm; and(c) Such other times as agreed by the parties in writing.…10The mother be and is hereby restrained by injunction from enrolling the children or either of them in, or taking the children to, any new extra curricular activities without first obtaining the Father’s written consent.…12Each party immediately inform the other party of any serious illness and/or injury sustained by the children or either of them whilst in the parties’ respective care and provide full particulars of the treatment received by the children or either of them and the name of the treatment provider to provide details of the treatment to the other party. This order does not entitle the mother to attend the place at which the child is being treated other than on invitation by the father (who has sole parental responsibility in relation to health issues).…15The parties be permitted to provide a copy of the following documents to the mother’s treating practitioners and for so long as the mother is spending time with the children, and she is at liberty to provide any new practitioners treating her with:(a)psychiatric assessment reports by [Dr C] dated February 2020 and April 2021;(b)family reports by [Ms B] dated 3 March 2020 and 11 May 2021; and(c)a copy of the reasons for decision and this Order.…18The father do all acts and things necessary to authorise the mother to receive, directly from [X] and [Y’s] respective schools, information such as school reports, newsletters, school photographs together with any and all such information normally sent to parents, and any notification that the mother is in arrears and/or in default of the [G School]l fees.19Each party be at liberty to attend any school event, function or meeting to which parents of children would normally be entitled to be present.20There be an Airport Watch List in the following terms:(a)Each of the mother, [MS VANETTI] born […] 1979, and the father, [MR HARRISON] born […] 1977, and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the children [X], male, born […] 2014 and [Y], male, born […] 2017 (or either of them) from the Commonwealth of Australia.(b)[X], male, born […] 2014 and [Y], male, born […] 2017 be and are hereby restrained from leaving the Commonwealth of Australia.(c)IT IS REQUESTED that the Australian Federal Police give effect to the preceding sub-paragraph (b) by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order.21Both parents be and are hereby restrained by injunction from applying for and/or renewing passports for the children or either of them without first obtaining the prior written consent of the other parent or an order of this Honourable Court.22The parties be permitted to provide a copy of this Order to the children’s respective schools and treating medical and allied health practitioners.…25That in relation to the father’s superannuation entitlements in the Fund:(a)The father, [Mr Harrison] born […] 1977, is a member of the Fund, member number […].(b)The mother, [Ms Vanetti] born […] 1979, is not a member of the Fund.(c)The base amount to be allocated to the mother from the father’s interest in the fund is the amount of $20,000.Appeal

Evidence

Evidence Before The Court

The father, by way of his Response to Initiating Application, seeks that the mother’s application be dismissed. The father also sought orders that the mother’s applications be declared vexatious within the meaning of s 102Q(1) of the Family Law Act 1975 (Cth) (“the Act”) and that the mother be prevented from instituting proceedings relating to the children for a period of five years. During a later mention of the matter, counsel for the father clarified that they sought a harmful proceedings order against the mother pursuant to s 102QAC of the Act.EVIDENCE By way of her Outline of Case, the mother says that in support of her case she relies upon:(1)“TRIAL” Affidavit filed 28 November 2024;(2)Subpoena to AN Psychologists filed 21 November 2024;(3)Subpoena to R Hospital filed 17 November 2024;(4)Subpoena to U Medical Centre filed 11 November 2024;(5)Witness Affidavit filed 28 August 2024;(6)Appeal Judgment page 7 paragraph 29 dated 23 October 2023;(7)Subpoenas to Dr L filed December and February 2022;(8)Mother’s written submissions filed 21 August 2022; and(9)Affidavit of Dr L filed 23 October 2019. Items 7 to 9 above is evidence that is dated around and prior to the hearing before her Honour and is not evidence that was unavailable during those proceedings. The mother has sought to rely on documents subpoenaed since she issued this current application, including a subpoena directed to AN Psychologists. The mother was informed that there will be no further subpoena accepted for filing during the Case Management Hearing. There were subpoenas approved for filing prior to the Case Management Hearing and the matter being in my docket, including that directed to AN Psychologists. Nonetheless, due to insufficient service by the mother, AN Psychologists did not comply with the subpoena and the mother seemingly sought to file an amended subpoena as well as another subpoena to Dr L, which was not accepted for filing. The issuing of any further subpoena was not accepted in accordance with r 6.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and therefore any requests were not issued by the Registry save for those which had already been issued prior to the Case Management Hearing and the matter being in my docket, being those directed to AN Psychologists (which was not complied with due to insufficient service) U Medical Centre, R Hospital and Ms OO (which was not complied with due to insufficient service). The mother sent further correspondence to my chambers which does not address her Outline of Case but goes to her seeking an injunction from the children being in contact with Dr L, travel orders to Country D and the intervention of the Chief Justice in the matter.RELEVANT LAW The application to reconsider final parenting orders is governed by the operation of s 65DAAA of the Act which provides:1.If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:a.the court has considered whether there has been a significant change of circumstances since the final parenting order was made; andb.the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.2.For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:a.the reasons for the final parenting order and the material on which it was based;b.whether there is any material available that was not available to the court that made the final parenting order;c.the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);d.any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.3.Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.4.The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.

Decision

Reasons for decision

In her affidavit, the mother sets out the following reasons as to why the Court should reconsider the final parenting orders and sets out ‘events’ for each reason which she says support her assertions. Reason 1 – The father does not consult with the mother before making final decisions for the children This reason is underpinned by reliance on part of paragraph 2 of the final orders vesting sole parental responsibility to the father on the proviso that: noting the father shall consult with the mother in relation to any issues arising in relation to the children’s health and/or education and the parties shall make a genuine effort to come to a joint decision about any such issues however if no agreement is reached, then the father shall make the final decision and advise the mother in writing of any such decision. The evidence of the mother largely relates to the father’s decision to transition X to attending O School on a full-time basis. The mother says that this is not in the best interests of X and that the father unilaterally makes decision and informs the mother afterwards.[1] She sets out correspondence with X’s teacher at O School and his NDIS allied health professional who says that the child has presented as sleep deprived and hungry.[2] Further, she states that she had a meeting with the principal and assistant principal who allegedly agreed that it is not in X’s best interests to attend O School full-time and that they will provide evidence of such to the Court if required.[3] The mother also sets out communications between the father and the relevant staff at O School.[4] She gives evidence of what steps she would have taken instead before enrolling X into O School full-time. [1]Mother’s affidavit filed 28 November 2024 ‘Mother’s affidavit’ at 6.[2]Mother’s affidavit at 12.[3] Mother’s affidavit at 11-12.[4] Mother’s affidavit, Annexure “MV-01” The mother’s criticism in her affidavit evidence is that she believes that the father has not made a fully informed decision before taking steps for the child to transition to full time schooling at O School and sets out reasons why she is critical of the father’s decision to embark on a transition to full time attendance for X at O School. The email from the father to the school dated November 2024, which sets out his proposal for the transition (and which is set out in full in the mother’s affidavit), shows that the father has given careful consideration to the transition. In further correspondence which the mother sets out, the father seeks confirmation from the principal and assistant principal that they support the proposal for X to attend O School full time, where the assistant principal states that they are happy to support the transition as proposed.[5] [5] Mother’s affidavit, Annexure “MV-01”. The mother’s complaints largely go to what she perceives to be the father failing to make an informed decision where she states that she would take a different approach. The mother is also critical that she has not been included in all meetings and discussions with the school, particularly regarding the issue of the child transitioning to full time attendance at the school.

Ratio Decidendi

Legal Principle Established

When considering the matters at s 60CC(2)(a), s 60CC(2A) sets out that the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child and any family violence order that applies or has applied to the child or a member of the child’s family.CONSIDERATIONSection 65DAAA(1)(a)The court has considered whether there has been a significant change of circumstances since the final parenting order was made In her affidavit, the mother sets out the following reasons as to why the Court should reconsider the final parenting orders and sets out ‘events’ for each reason which she says support her assertions. Reason 1 – The father does not consult with the mother before making final decisions for the children This reason is underpinned by reliance on part of paragraph 2 of the final orders vesting sole parental responsibility to the father on the proviso that: noting the father shall consult with the mother in relation to any issues arising in relation to the children’s health and/or education and the parties shall make a genuine effort to come to a joint decision about any such issues however if no agreement is reached, then the father shall make the final decision and advise the mother in writing of any such decision. The evidence of the mother largely relates to the father’s decision to transition X to attending O School on a full-time basis. The mother says that this is not in the best interests of X and that the father unilaterally makes decision and informs the mother afterwards.[1] She sets out correspondence with X’s teacher at O School and his NDIS allied health professional who says that the child has presented as sleep deprived and hungry.[2] Further, she states that she had a meeting with the principal and assistant principal who allegedly agreed that it is not in X’s best interests to attend O School full-time and that they will provide evidence of such to the Court if required.[3] The mother also sets out communications between the father and the relevant staff at O School.[4] She gives evidence of what steps she would have taken instead before enrolling X into O School full-time. [1]Mother’s affidavit filed 28 November 2024 ‘Mother’s affidavit’ at 6.[2]Mother’s affidavit at 12.[3] Mother’s affidavit at 11-12.[4] Mother’s affidavit, Annexure “MV-01” The mother’s criticism in her affidavit evidence is that she believes that the father has not made a fully informed decision before taking steps for the child to transition to full time schooling at O School and sets out reasons why she is critical of the father’s decision to embark on a transition to full time attendance for X at O School. The email from the father to the school dated November 2024, which sets out his proposal for the transition (and which is set out in full in the mother’s affidavit), shows that the father has given careful consideration to the transition. In further correspondence which the mother sets out, the father seeks confirmation from the principal and assistant principal that they support the proposal for X to attend O School full time, where the assistant principal states that they are happy to support the transition as proposed.[5] [5] Mother’s affidavit, Annexure “MV-01”.