Vanetti & Harrison
[2025] FedCFamC1F 162
•14 March 2025
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vanetti & Harrison has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCNAB J
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
The mother filed a Notice of Appeal relating to those orders on 13 July 2023 and the appeal was heard by the Full Court on 28 September 2023. On 23 October 2023, the Full Court delivered judgment dismissing the mother’s appeal (Vanetti & Harrison [2023] FedCFamC1A 180). Despite the appeal being dismissed, the mother’s decision to now bring this application is partly brought on by comments made by the Full Court in their written reasons, of which she makes direct reference to some in her material. These include:
29Perhaps under this ground, but even if not advanced nonetheless, is a complaint that the grant of sole parental responsibility to the father for medical issues relating to the children was not in their best interests, as he had a history of manipulating medical practitioners who engaged with the children for forensic purposes, and not genuine health reasons.
30There are certainly examples in the material of the father seemingly trying to, and perhaps succeeding in, suborning the children’s therapists to his cause. However not only did the primary judge not make any finding of improper involvement of health practitioners by the father, but it is plain beyond argument that it would simply be impossible for these two parents to engage in any joint decision making in relation to the children’s health. It would be a recipe for endless, bitter and intractable conflict, and could never be in the best interests of these children.
…
49The mother challenges the finding that she does not have the requisite capacity to parent the children whilst on holiday in [Country D], but whilst that is a conclusion which we might not have reached if we were deciding the matter afresh, it does not speak of error of the kind identified in House and is thus not a proper basis for appellate intervention (Gronow v Gronow (1979) 144 CLR 513). The consequences of the children not being able to travel to [Country D] with the mother are indeed unfortunate (including but not limited to the children’s relationship with the maternal family and immersion in the mother’s [Country D] culture), but does not establish error. However, as the primary judge identified at [282] by her use of the words “at this time”, the concerns present at the time of hearing may be ameliorated with the effluxion of time.
…
56The mother appears to contend that not permitting [X] to attend [language] lessons, because he could not cope with them, is discriminatory, as his inability to cope is derived from his disability. We do not need to consider that further, as plainly the primary judge’s focus was on [X’s] best interests, and it is clear that the primary judge was not satisfied that, at least presently (again a circumstance which may change with the effluxion of time), [language] lessons were so. That we might have reached the contrary conclusion is not a proper basis for appellate intervention.
…
65Particularly she contends that in her evidence, she included a letter from her solicitors to the father’s solicitors dated 27 January 2021, which sought the return of items of personalty, including an iPad, hard drives and some clothing.
66However the mother never sought any order to that effect (see, for example, the property orders sought by her at page 15 of her Case Outline filed 21 February 2022). As we have noted, parties are bound by the conduct of their case at trial (Metwally).
67Of course, assuming the relevant items of property are in the father’s possession, basic human decency would require their return to the mother, but that does not establish error by the primary judge.
PROPOSALS
There have been slightly different variations of the orders sought by the mother throughout the material she has filed in support of her application. Her most recent iteration is contained in the Outline of Case she was granted leave to file following the hearing on 3 December 2024. This sets out her orders sought as:
Parenting
1.That the parties have EQUAL shared parental responsibility health and Education for the children [X] born […] 2014 and [Y] born […] 2017 (“the children”).
2.The father is restrained by injunction from taking the children to [ Dr L].
3.Commencing forthwith the mother be permitted to travel to [Country D] with the children for no longer than 14 consecutive days during the school holiday periods provided as follows:
a.The Mother notify the father 90 days in advance of any proposed trip with the children.
b.The Mother provide evidence of her return travel tickets for her and the children and trip itinerary 60 days in advance of the proposed departure date;
c.The Mother facilitate the father speaking to the children on a daily basis via FaceTime or telephone.
4. [X] can be enrolled in [language] class.
…
7.Any Nannies caring for my son [X] must be trained about [his medical condition] essential by an accredited […] provider ([…]) and acquire knowledge about [his medical condition], [its manifestation], first aid and management strategies plus the impact of [the condition] and provide evidence to the Court and the mother.
Treatment and Support
PARENTAL RESPONSIBILITY FOR HEALTH AND EDUCATION IS SHARED.
8.Mother and father consult each other about any issues arising about the children's health and/or education and the parties shall make a genuine effort to come to a joint decision without delay treatment only for major health issue or education.
9.That the parties shall immediately (by phone and or writing) inform the other party of any serious or mild illness or injury sustained by the child/ren whilst in their care and shall provide full particulars of the treatment received by the child/ren and the name of the treatment provider to provide details of the treatment to the other party.
…
14.That each parent be restrained from changing medical professionals, treating specialists of the children unless there is consensus between both parents in writing.
…
17.The list of Personal belongings indicate in the letter from my former lawyer […] on 27 January 2021 to the lawyer […] must be returned and memories and pictures of the children's album must be shared equally.
18.Disciplinary order against the father for deliberately disclosing the Court judgments to members of the public, breaching the mother's privacy and confidentiality, along with an enforcement order against the father for complying with Section 121 of the Family Law Act, prohibiting the publication of legal materials: Court judgments to third parties.
The mother also seeks interim orders in her Amended Initiating Application for her to be granted access to the children’s medical records and for X to attend O School and N School on alternate days.
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; and
b.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.
This section codifies the principles established in Rice & Asplund (1979) FLC 90-725 and the cases applying it. As was noted recently in Carlyon & Graham [2024] FedCFamC1F 443 at [45]-[48] by Schonell J:
45The operative section is conjunctive and mandates that the Court must not reconsider a final parenting order unless it has considered whether there has been a significant change of circumstances since the final parenting order was made and the Court is satisfied that in all of the circumstances taking into account whether there has been a significant change of circumstances that it is in the best interests of the child for the parenting order to be reconsidered. Section 65DAAA(2) provides a non-exhaustive list of matters that the Court may consider in determining whether or not it is in the best interests of the child for the final parenting orders to be reconsidered.
46There is nothing new in the provisions contained in s 65DAAA rather it is a codification of well-established jurisprudence.
47It has been clearly articulated in numerous authorities that the court should not “lightly entertain an application to reverse” an earlier order unless it is satisfied that there are changed circumstances It was sometimes inelegantly described as the rule in Rice & Asplund.
48The rationale for the existence of the so-called rule is that the best interests of children are not promoted by endless litigation and that once the court has made a determination, unless there has been established a change of circumstances, then the court should not engage in further litigation in relation to the child. In that respect as long ago as in Freeman and Freeman (1987) FLC 91-857, Strauss J said at 76-470–76-471:
… Once the court … 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…
That approach to the interpretation of the section was approved in Radecki & Radecki [2024] FedCFamC1A 246 at [79] per Austin & Williams JJ and [117]-[129] per Carew J (‘Radecki’).
In making any parenting order, s 60CA of the Act governs that the best interests of the child is the paramount consideration and in determining the best interests I have regard to the matters set out at s 60CC of the Act:
…
2.For the purposes of paragraph (1)(a), the court must consider the following matters:
a.what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
i.the child; and
ii.each person who has care of the child (whether or not a person has parental responsibility for the child);
b.any views expressed by the child;
c.the developmental, psychological, emotional and cultural needs of the child;
d.the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
e.the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
f.anything else that is relevant to the particular circumstances of the child
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.
CONSIDERATION
Section 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”.
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.
The evidence that the mother has annexed to her affidavit indicates that:
(a)the father has kept the mother informed of matters relevant to the child’s education and has sought her consent to transitioning to full time attendance at the primary school with the support of educators who know the child;
(b)the mother does not agree with the father’s decision; and
(c)the mother has behaved in correspondence with the school and health care provider as if she has either sole parental responsibility for all matters going to health and education or shared parental responsibility.
This reason as set out by the mother is not indicative of a significant change of circumstances, rather it is a manifestation of the concerns of both her Honour and the Full Court that these parties are unable to cooperate. This was the basis for the orders vesting sole parental responsibility to the father where her Honour stated:[6]
194I will mention elsewhere some of the mother’s criticisms and negative views of the father. Notably the mother’s attitude to the father has not softened. In cross-examination the mother stated that the father does not love the children otherwise “he would not do this to the mother”. She couldn’t say anything positive about the father’s parenting. When asked in cross-examination what good qualities he has as a father, the mother responded that he is good looking, has a good singing voice and he is smart.
195The parental relationship is not simple and I am confident that I do not have a comprehensive appreciation of the relationship dynamics. In this case, laying blame for the conflict between the parents is a barren exercise. As the notes of child protection record, each parent perceives themselves to be a victim in the relationship. On the evidence before me all I can do is to recognise the very high degree of conflict, accept that it will not abate and, most importantly, that it precludes the parents from being able to cooperate over the care of the children.
196The mother’s behaviour, attitude and lack of insight have been comprehensively commented on by [Ms B] and [Dr C]. On that evidence alone I am satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. Accordingly the presumption under s 61DA is rebutted and I am required to consider parental responsibility at large.
[6] Vanetti & Harrison (No 2) [2023] FedCFamC1F 563 (‘Vanetti’) at [194-196].
Regrettably, the mother’s attitude towards the father as outlined by her Honour remains unchanged. The mother’s criticisms of the father is simply her being critical of the father’s exercise of sole parental responsibility and is not a basis to show that there has been a significant change of circumstances.
Reason 2 – The father does not consult with the mother before making final decisions regarding school excursions for the children, keeping the mother unaware of the children’s excursions at school
This stems from an incident which occurred where X had an accident on a school excursion resulting in an injury which required stitches. The mother says that she was informed of this accident the next day and that the father signed the consent form for X to attend the excursion without consulting her.[7]
[7] Mother’s affidavit at 13.
The issue of the children’s attendance at school excursions which students ordinarily attend is not sufficient to demonstrate a significant change of circumstances.
Reason 3 – Medical negligence
The mother alleges that when Y was in her care he was prescribed antibiotics, however, when he went into the father’ care, subpoena material from U Medical Centre shows that he attended for a second opinion and interrupted Y’s course of antibiotics, placing the child at harm.[8] Annexed to her affidavit are medical certificates relating to Y being diagnosed with an illness in August 2024 where he was prescribed a course of antibiotics.[9]
[8] Mother’s affidavit at 15.
[9] Mother’s affidavit, Annexure “MV-05”.
Raising this as an issue does not constitute a significant change of circumstances and is reflective of the conflict between the parties.
Reason 4 – Omission of the children’s current medical conditions
The mother submits that information she received pursuant to the subpoena directed to U Medical Centre revealed extensive health information in relation to the children which was not disclosed to her. This includes an instance where X was prescribed antibiotics when in the father’s care, but once he went into the mother’s care the mother was not informed by the father that the child was taking a course of antibiotics.[10] In general, the mother says she is not informed of any medical conditions or the results of any tests or referrals.[11] A number of the alleged omissions listed by the applicant occurred prior to the final orders being made. This does not give rise to a basis that there has been a significant change of circumstances.
[10] Mother’s affidavit at 16.
[11] Mother’s affidavit at 17.
Reason 5 – Father’s health manipulation of the children for forensic purposes
In relation to this reason, the mother says that she relies on her submissions written in 2023. She also cites [29]-[30] of the written reasons of the Full Court (set out at [7]) saying that their Honours recognised the father’s history of manipulating medical practitioners.[12]
[12] Mother’s affidavit at 18.
It is critical that the observations made by the Full Court relied on by the mother was immediately followed by the opinion that the parties could never share parental responsibility and that the orders made by her Honour were correct in respect of allocating sole parental responsibility.
The mother raises issues she has with Dr L. She alleges that Dr L received a $450 payment from the father to make false allegations against the mother. She seeks an injunction against the father bringing the children to Dr L as she says that due to the father’s manipulation Dr L poses a risk to the health of the children and where she says she reported Dr L to Victoria Police and APHRA.[13] The mother states that recently subpoenaed material from U Medical Centre indicates that in February 2022 (prior to the final orders being made) the father sought a referral to take the children to Dr L.
[13] Mother’s affidavit at 18-19.
These are not new allegations. In the proceedings before her Honour the mother sought an injunction from the father engaging Dr L and Ms Q. Her Honour noted that the mother did not require those practitioners for cross examination.[14] The mother says that her counsel did not require Dr L as there was insufficient time.[15] Significantly, her Honour stated that if the mother were to bring a further application in relation to Dr L, it would need to rely on grounds other than those mentioned in the suite of submissions before her Honour.[16] Her Honour recorded those to largely be:[17]
246The height of the mother’s criticisms is that what [Dr L] says in certain correspondence is wrong. She does not admit of the possibility that negative descriptions of her parenting capacity and behaviour by [Dr L] in correspondence and notes may be justified. Those opinions of [Dr L] were not tested. Otherwise, the submission by her counsel at trial was that the mother had always been and seeks to continue to be very involved in [X’s] treatment. However, it was not addressed as to how this will not be disruptive. The answer is not to only have the children seen by practitioners chosen by the mother. One alterative practitioner nominated by the mother refused to be engaged given another practitioner was already in place. I acknowledge that the father unilaterally chose the current paediatrician but the paediatrician is now engaged and should continue. I understand why the mother would prefer other practitioners who, in her view, would not have been influenced against her. That is reasonable vis-à-vis the practitioner and the mother, however, it is not a result that I perceive to be in [X’s] best interests. First, because he has seen his existing practitioners. Second, the practitioners are familiar with [X]. Third, I consider that finding further practitioners would be inconvenient to the father who is the agreed primary parent. Fifth, there is no guarantee that the mother would be content with new doctors in any event. One of the directions I will ma[k]e is that the children’s health professionals are provided with a copy of the final order and these reasons for decision. None will be compelled to read the reasons for decision but they will be available to them is they want to. It seems to me that the mother may object to any health professional who has access to the reasons unless she is given what she considered to be an adequate opportunity to put counter-arguments in respect of findings which have been made against her.
(Emphasis added)
[14] Vanetti at [241].
[15] Vanetti at [244].
[16] Vanetti at [243].
[17] Vanetti at [246].
Within this context, her Honour stated:[18]
247I will include an order that the mother be entitled to a copy of all or any reports written by the practitioners who see either child. This does not compel the father to request or obtain reports. I imagine few, if any, reports would issue from the general practitioner. However, if a report is published by a health professional, the mother should be provided with a copy.
248In the context of parental responsibility, the father undertakes to keep the mother informed and consult her on medical issues but in the event they are unable to reach agreement that he be authorised to make final decisions on these topics. The father’s case for this order is identified in his evidence about problems the mother causes when they try to reach agreement. I am satisfied that the timely delivery of medical and allied health services to both boys requires that one parent, here the father, have sole responsibility for the issue and he has chosen [Dr L]. The same applies to the psychologist, [Ms Q] I note that the [R] hospital report of […] September 2019 recommended that “parenting support for each parent should focus on uniting them in providing consistent and predictable interactions with [X]”. Unfortunately, the evidence in this case leads me to conclude that the parents are incapable of achieving “united” position. Accordingly, I have selected the parent to be the parent who is solely responsible for medical issue. He is to consult with the mother, but ultimately, the decision making power is his. If the mother wants to get support or assistance for her to navigate the care [X] receives, she is at liberty to do so but I am not imposing an order to that effect.
[18] Vanetti at [247]-[248].
These matters were dealt with previously and do not represent a significant change of circumstances.
Reason 6 – Subpoena of Y’s psychologist
The mother says that whilst she has not received the subpoena material from Y’s former psychologist, she submits that due to the father’s history of manipulating medical practitioners there is a presumption that the material will demonstrate further health manipulation by the father.[19]
[19] Mother’s affidavit at 20.
As noted above, the mother’s allegations of the father manipulating the children’s treating medical practitioners are not new and were an issue before her Honour. This does not demonstrate a significant change of circumstances.
Reason 7 – The Family Report writer was not qualified to give custody recommendations.
The mother’s basis for this assertion is that the Family Report writer lacked the specialised skill to assess the parties and provide recommendations for a “neurodiverse family like ours.” She says that the Family Report writer does not possess qualifications in neurophysiological diversity, medicine, chronic disease, health prevention or nutrition, nor did she consult practitioners with such expertise.[20]
[20] Mother’s affidavit at 20.
The mother’s criticisms of the Family Report writer are not new. This was dealt with by the Full Court and the Family Report writer’s evidence was accepted by her Honour. This is not indicative of a significant change of circumstances.
Reason 8 – The children are experiencing nutritional negligence under the father’s care
The mother states that the children are experiencing nutritional negligence and that this was not taken into account by her Honour. She says that the children are regularly given vegemite or jam in their lunchboxes and go to McDonald’s for breakfast. As a result, she says that X is severely overweight and if the father is unable to provide for the primary needs of the children, she questions how he can provide for X’s complex needs.[21]
[21] Mother’s affidavit at 23-24.
The mother can raise concerns about the health and nutrition of the children with the father. Her Honour explicitly stated that she was not concerned about the father’s parenting capacity:[22]
212I have no concerns about the father’s capacity to parent. I am satisfied that his role as primary carer should be supported and protected so that the discharge of his responsibilities is not made unduly onerous and the practitioners chosen to treat the children are not distracted by or subjected to conflictual parental views. The best way to do this, at this stage, is to make the father solely responsible for the most contentious long term parenting issues, being education and health.
[22] Vanetti at [212].
The father can obtain or take advice from health professionals regarding these issues if they are a concern. This does not represent a significant change of circumstances and reopening the proceedings is not an appropriate or viable avenue for addressing these concerns of the mother.
Reason 9 – Father’s lack of health prevention
The mother says that from subpoenaed material from U Medical Centre the father took X to a general practitioner to have a skin lesion inspected where he was given ointment and a referral to a dermatologist. The mother states that she would have enquired with the general practitioner if the lesion was of concern and if so, would have asked for a referral for mole mapping.[23]
[23] Mother’s affidavit at 26.
This is another example of the mother wishing to exercise parental responsibility in the face of the orders. This is not a significant change of circumstances.
Reason 10 – Travel orders to Country D
The mother states that the children’s ability to maintain a relationship with their maternal grandparents and their aunt in Country D is essential. She says that their aunty is expecting a baby and seeing as the father can take the children to visit the paternal grandparent in City E, she must also be able to travel to Country D with the children.[24]
[24] Mother’s affidavit at 27.
Her Honour considered travel orders to Country D and the impact that this would have on the children’s relationship with the maternal family. At [199] of her written reasons, her Honour noted that the children’s ability to know and enjoy their Country D family is not solely dependent on them travelling to Country D.
The mother’s claim that her sister expecting a child represents a significant change of circumstance that would now allow her orders to travel as it represents an opportunity for the children to see the maternal family and meet their expected cousin is negated by the mother’s view of the father remaining unchanged. Her Honour’s finding at [270] still persist and is not remedied by the expected arrival of the children’s cousin:
270…Whilst her family in [Country D] may assist her with the physical care of the children in [Country D], there will be no check and balance against her consistently negative view of the father, as she’s likely to impart that view to her family and to the children. [Ms B] has assessed the exposure of the children to the mother’s behaviour in this regard as very harmful.
Further at [270]-[272], her Honour held in relation to overseas travel by the mother that:
(a)the mother lacked the capacity to care for the children emotionally or physically;
(b)the children would be exposed to the mother’s negative view of the father;
(c)the mother’s family have no authority over the children (or the mother);
(d)the risks to the children of having unrestricted time with the mother could not be adequately addressed; and
(e)there was a risk of the mother not returning to Australia with the children.
Whilst her Honour noted that the children’s cultural identity was important, the children’s inability to travel to Country D at the time of judgment was “a direct consequence of the mother’s lack of capacity to parent the children in a way that is psychologically safe.”[25]
[25]Vanetti at [282].
The mother forwarded correspondence to the Court, which was not in an admissible form, from her family which was to the effect that the maternal grandparents could not travel to Australia due to health concerns and their incapacity exacerbated the negative effects of the orders on the children’s relationship with their [Country D] relatives and connection to culture in [Country D]. However, the concerns outlined by her Honour are not addressed by the mother. The rationale for the orders made by her Honour remains. The mother’s negative views of the father persist and her Honour’s concerns about the mother not complying with orders and returning to Australia continue to be relevant. This reason does not represent a significant change of circumstances.
Reason 11 – Retrieve list of personal items since 2019
The mother seeks the return of personal belongings she says are in the possession of the father. She says that these belongings not being returned to her have caused her immense emotional distress and is a blatant disregard for human decency.[26]
[26] Mother’s affidavit at 28.
This was raised in the previous proceedings and was the subject of comment by the Full Court in their written reasons at [67]. However, and to echo their Honour’s remarks, whilst decency would require the return of the items if they are in the possession of the father and are able to be returned, this is not a basis to establish a significant change of circumstances.
Contravention of s 121 of the Act
Whilst not labelled under a ‘reason’, in her evidence the mother alleges that documents produced pursuant to subpoenas directed to U Medical Centre and the R Hospital demonstrate that the father has contravened s 121 of the Act (noting that this section was repealed and replaced by Part XIVB of the Act) by providing a copy of the first instance and appeal judgments to members of the public being the R Hospital and U Medical Centre staff. She says that this is a further form of manipulation aimed at denigrating her by breaching her privacy and confidentiality.[27] It is noted that the orders did not make provision for the father to provide those documents to the medical practitioners treating the children, however, at [246] of her Honour’s reasons she states:
246…One of the directions I will ma[k]e is that the children’s health professionals are provided with a copy of the final order and these reasons for decision. None will be compelled to read the reasons for decision but they will be available to them is they want to. It seems to me that the mother may object to any health professional who has access to the reasons unless she is given what she considered to be an adequate opportunity to put counter-arguments in respect of findings which have been made against her.
[27] Mother’s affidavit at 5.
The final orders do not contain such a direction and I regard that as a slip. I do not regard the father’s conduct in providing a copy of the judgments of the primary judge and the Full Court as a sufficient reason to reopen proceedings nor a significant change of circumstances.
DISCUSSION
On the basis of the evidence before the Court relied on by the mother and her submissions, it does not support a finding that there has been a significant change of circumstances such as to warrant a reconsideration of the final orders. The reasons which are set out in the mother’s affidavit which she says go to the matters prescribed at s 65DAAA of the Act were canvassed by her Honour and the mother is seeking to reagitate those issues, largely on the same or similar evidence, as she disagrees with her Honour’s findings.
The mother’s criticisms of the father’s care of the children, particularly X, which she sets out in her affidavit as reasons 3, 5, 6, 8 and 9, are not new, and were addressed by her Honour. It was the mother’s entrenched negative view of the father and his parenting which was the basis for the order that the father have sole parental responsibility. At [293] of her Honour’s written reasons she states:[28]
293I am reluctant to provide the mother with another forum in which to criticise the father and/or to undermine his role as the primary parent with sole parental responsibility over issues of health and education. The mother, father and independent children’s lawyer have had eight days of evidence, voluminous affidavits and two days of refining their respective cases and making submissions, where arguably the most spoken about issue was the parents ability to co-parent. With four years of post-separation parenting to scrutinise, I have heard all of the evidence and have found that there is no capacity to co-parent on the most contentious issues. To suggest that there is capacity to co-parent and the parents can be assisted in that regard, is against the weight of the evidence of the single experts.
(Emphasis added)
[28] Vanetti at [293].
Significantly, her Honour noted that without receiving the recommended treatment, being the mutual view of the psychiatric assessment and the Family Report writer that the mother should receive dialectical behaviour therapy, the mother’s behaviour will not alter and that co-parenting is aspirational.[29] On the prospect of further litigation, her Honour stated:[30]
227… For instance, it would not be enough for the mother to say that she has changed her mindset or has completed […] therapy. She would need to demonstrate a marked and enduring change in behaviour. There is discrete jurisprudence on what constitutes circumstances giving rise to a children’s case being reopened and, if either party contemplates a further round of proceedings, they should make sure that they are familiar with the threshold test. I expect that these parenting orders will endure for years, not just months.
(Emphasis added)
[29] Vanetti at [294]-[295].
[30] Vanetti at [227].
Not only is there no indication that the mother completed the therapy, but there is no change in her behaviour in relation to her views of the father.
In relation to the father not consulting the mother before making final decisions for the children and failing to inform the mother regarding the medical treatment of the children set out in reasons 1, 2 and 4, her Honour’s orders are clear, the father should be attempting to consult with the mother and come to an agreement, however, failing agreement the decision is ultimately for the father to make, irrespective of if the mother believes it is not in the child’s best interests. Similarly, the father must ensure that the mother is immediately informed of any serious injury/illness suffered by the children and the care received. It is unsurprising that the parties are unable to reach an agreement regarding these matters and that was the basis for the order for sole parental responsibility. Again, this sentiment was also expressed by the Full Court in their written reasons at [30]:
30… it is plain beyond argument that it would simply be impossible for these two parents to engage in any joint decision making in relation to the children’s health. It would be a recipe for endless, bitter and intractable conflict, and could never be in the best interests of these children.
The remainder of the mother’s evidence consist of her challenging the Family Report, seeking to travel to Country D with the children, retrieve her personal belongings and assertions that the father has breached s 121 of the Act (which was repealed and replaced by Part XIVB of the Act). These are not a persuasive basis on which it is established that there has been a significant change of circumstances.
The entirety of the mother’s evidence and her reasons, whether taken at their highest solely or jointly, do not represent a significant change of circumstances.
As I have not made a positive finding that there has been a significant change of circumstances, the mother’s application to reopen the proceedings will be dismissed.
In the event that I am wrong in finding that there has not been a significant change of circumstances, I would then find that it is not in the children’s best interests for the parenting orders to be reconsidered for the following reasons. These reasons should be read with the foregoing reasons. I note that a consideration of whether there has been a significant change of circumstances will often require an analysis of the reasons for the final orders being made.
Section 65DAAA(2)(a)
The reasons for the final parenting order and the material on which it was based
Her Honour had extensive material before her, including a detailed history of the parties and their involvement with the Department of Families, Fairness and Housing (“DFFH”) and Victoria Police. This included an incident where in November 2018, an afterhours report was received from the childcare which X attended alleging that the mother had dragged the child down the stairs. The childcare manager was cross examined in the hearing before her Honour and it was accepted by her Honour that the child’s injuries on the stairs occurred as described by the manager.[31] There were various other reports and investigations by DFFH set out by her Honour which alleged family violence perpetrated largely by the mother.[32] These include a report made in February 2019 where the mother requested information from the childcare of their records of reporting to DFFH. Once she was told that she would have to wait for the documents, the mother allegedly became agitated and started screaming and swearing. Consequently, the mother was asked to leave the premise, but after refusing the childcare contacted the police. There was evidence given before her Honour that when an emergency call is made it is mandatory that the childcare must go into lockdown, which disrupts the activities of the children as the doors are locked and the curtains are closed.[33]
[31] Vanetti at [95].
[32] Vanetti at [77]-[106].
[33] Vanetti at [93].
There were also various psychiatric assessments and Family Reports available to her Honour. The psychiatric assessment which was conducted in 2021 and was accepted by her Honour, found that:[34]
[34] Vanetti at [169].
169[Dr C] diagnosed the mother as presenting with symptoms of [a mental health disorder] with Anxious Mood in the context of a vulnerable personality style […]. He opined:
…
2. It is obvious that [Ms Vanetti] cannot rest until such time as the children are returned to her, and as she has indicated, she looks forward to the forthcoming proceedings which from her perspective she believes her case will be proven, that is, that [Mr Harrison] is not a good father, has been unfaithful to her, and does not have the ability to care for the boys as only she does as their mother.
3. Whilst to her credit [Ms Vanetti] has continued her attendance upon her Psychologist, that treatment has not achieved the goal of assisting her to resolve the issues between [Mr Harrison] and herself, develop true insight, and to move forward emotionally.
4. The Psychologist’s depiction of [Ms Vanetti] as resilient is not in keeping with my two assessments of her and I consider little has really changed in her deeper unresolved issues with [Mr Harrison], evidenced by the litany of correspondence to him of a highly obsessive, unrelenting quality involving emotions of hurt, anger and jealousy.
5. [Ms Vanetti’s] quest to have residence of the children represents at some level her unresolved and desperate attempt to restore a sense of control in her life. The fact that the children continue to live with their father obviously eats away at her inner being, causing her much angst, distress and emotional pain.
6. Having assessed [Ms Vanetti] on this occasion, it appears there has not been any real progress in developing true insight.
7. In that respect as noted by [the Family Report writer], whilst [Ms Vanetti] displayed a warm, responsive and energised style of engagement with the boys, such a view was a ‘snapshot’ and not the full picture. Noting that [Ms Vanetti] presented as lacking the necessary insight into the impact of her mental health on the children, [Ms B] expressed concern about her ability to sustain a long term nurturing relationship with the children or support [Mr Harrison] in his role as the primary caregiver without significant therapeutic input.
…
In a similar respect, her Honour noted that in the second Family Report:[35]
174 In the [Ms B’s] evaluation, she observed:
…
40. Support for a more cautious approach arises in relation to [Ms Vanetti’s] lack of insight into the impact of her behaviour on the children’s wellbeing. Her unremitting critique of [Mr H’s] parenting and her competitive and combative approach to co-parenting is justified on “cherry picked” advice from protective authorities. On that unstable basis, [Ms Vanetti] has set about demonstrating she is, as she says, the “superior” parent. This perception of superiority is not supported by information available at assessment and while [Ms Vanetti] displays a remarkable energy and enthusiasm for [X] and [Y], her presentation is labile. As the observation revealed, her mood changes quickly when there is a loss of control over the setting and more so in [Mr Harrison’s] presence. Using this example to extrapolate, [Mr Harrison’s] observed concerns about the impact of [Ms Vanetti’s] behaviour on the boys’ takes on greater significance.
41. The risk to the children in [Ms Vanetti’s] care will be contextual; when able to focus on the task(s) at hand, attune herself to the boys’ needs and regulate emotionally, the risk will be mitigated, however, if she is overwhelmed by her parenting experience, pre-occupied with unresolved issues relating to [Mr Harrison], or triggered by a threat to her mothering role, there is risk [Ms Vanetti] will fixate on those issue to the detriment of the children. At this time [Ms Vanetti] presents as fixated on the joint goals of demonstrating her bona fides as a better parent and [Mr Harrison’s] flaws as the boys’ primary caregiver. In doing so she limits opportunity for change and for a less conflicted parenting experience for the boys. The writer indicated in her first report that [Ms Vanetti] should access a specific type of treatment to gain greater self-awareness, insight and strategies to better manage her responses. Treatment options are contained in the recommendations. Substantial review of the parenting schedule should occur once [Ms Vanetti] has fully engaged in the treatment specified and demonstrated a capacity for cooperative parenting.
42. The recommended schedule aims to provide continuity of care to [X] and [Y] in the care of their father and access to a relationship with their mother that promotes the more functional aspects of her parenting, whilst balancing the risks inherent in her parenting. The frequency of time spent occasions need to be reduced and changeover arrangements altered. Developmental changes for the boys are such that a reduction in frequency could be well-tolerated, and may in fact reduce the occasions of heightened stress arising from changeovers and the energy required to adapt to the contrasting styles of their parents.
[35] Vanetti at [174].
Her Honour considered but did not find the evidence called by the mother’s treating psychologist and counsellor to be persuasive.[36]
[36] Vanetti at [182] and [187]-[188].
The reasoning for the making of orders which vested sole parental responsibility in the father are clearly set out in the following terms:[37]
3….I am confident that the outcome reflects what is in the children’s best interests, individually and together. The mother adores the children and they love her. But the mother has a very negative view of the father. It is in the children’s best interests to have care which is consistent and predictable. Because I have no confident that the parents can work cooperatively in parenting [X] and [Y], I find that the needs of the boys will be best met if responsibility for major decision for health and education vest in one parent.
(Emphasis added)
[37] Vanetti at [3].
Section 65DAAA(2)(b)
Whether there is any material available that was not available to the court that made the final parenting order
The mother relies on the subpoenaed material which she says goes to support her assertions. She also relies on the written reasons of the Full Court. She says that comments made such as “There are certainly examples in the material of the father seemingly trying to, and perhaps succeeding in, suborning the children’s therapists to his cause”[38] is supportive of her application for shared parental responsibility.
[38] Vanetti & Harrison [2023] FedCFamC1A 180 at [30].
The mother also sets out various email correspondence with herself, the father and the school staff at O School as well as a NDIS allied health professional which she states support her claim that it is not in X’s best interests to attend O School full time.
This material shows the father is engaging with the school and making considered decisions whilst attempting to keep the mother informed of decisions where she is then able to respond. Again, the mother’s criticism of the father’s decisions is largely criticism of his exercise of sole parental responsibility. The evidence that the mother now relies on is largely a reiteration of matters raised before the Court that made the final parenting order.
Section 65DAAA(2)(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)
It is not likely that if the matter were to be reconsidered that the Court will make new orders which will affect the operation of the final parenting orders in a significant way. The evidence provided by the mother is largely reagitating issues which were dealt with in the previous proceedings. The mother’s conduct following the final orders being made indicate that her behaviour and attitude towards the father has not changed and the mother is still highly critical of the father to the extent that there is no reasonable prospect of the Court making orders for shared parental responsibility as she seeks. That was a matter recognised by the Full Court.
Section 65DAAA(2)(d)
Any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order
On 30 July 2023, the mother filed an enforcement application which was dismissed by orders made on 10 August 2023 by her Honour. The mother’s appeal in this matter was finalised on 23 October 2023. On 29 August 2024, less than a year later, she now seeks for the parenting orders to be reconsidered. To involve these parties in a further course of litigation would not be in the best interests of the children having regard to s 60CC of the Act. The mother’s unrelenting criticism of the father supports the basis on which the orders were made and there is currently no benefit in reconsidering the orders. Whilst the Full Court expressed, similarly to her Honour, that concerns which gave rise to her Honour’s orders may be ameliorated with the effluxion of time, such time has not come to pass. This is made apparent by the mother in her Outline of Case, where she states:
The mother swears she won’t relent until she secures the orders she is pursuing, driven by her unwavering commitment to protect her children and ensure the best health outcomes and future education with her involvement. It is her fundamental duty of care to prioritize the children’s well-being, protecting her children from the father’s health manipulation...[39]
(Original emphasis)
[39] The mother’s position was confirmed when the matter was mentioned on 25 February 2025 where she advised the Court that she would not stop making applications as it was her right as the mother of the children.
DISCUSSION
In these circumstances, I do not find that even if it were established that there was a significant change of circumstances that it would be in the best interests of the children to reconsider the final parenting orders made by her Honour.
VEXATIOUS LITIGANT/HARMFUL PROCEEDINGS
As to the father’s application by way of his Response for the mother to be declared a vexatious litigant, that application will be dismissed on the grounds that it has no reasonable prospects of success. The Courts’s power to make a vexatious proceedings order is governed by s 102QB of the Act and 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; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c)any other order the court considers appropriate in relation to the person.
(3)The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a)the Attorney‑General of the Commonwealth or of a State or Territory;
(b)the appropriate court official;
(c)a person against whom another person has instituted or conducted vexatious proceedings;
(d)a person who has a sufficient interest in the matter.
(4)The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5)An order made under paragraph (2)(a) or (b) is a final order.
(6)For the purposes of subsection (1), the court may have regard to:
(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)orders made by any Australian court or tribunal; and
(c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
Vexatious proceedings are defined in s 102Q(1) to include:
(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.
The Full Court in Pencious & Searle (2017) FLC 93-805 adopted Perram J’s findings in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 that the following qualities may be suggestive of a vexatious proceeding:
(1)The commencement of similar proceedings in the same court or in other courts;
(2)“Habitual and persistent” institution of proceedings;
(3)Proceedings that are manifestly hopeless or devoid of merit (see also Edelman J in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216 at [73]–[74]); and
(4)The repetition of issues that have been determined previously
Whilst the mother is by the present application seeking to relitigate the issues that were considered by and determined in her Honour’s judgment, that does not by definition constitute a vexatious proceeding or render her as a vexatious litigant. Having regard to the legislative scheme, there is no reasonable prospect of a Court making a determination that at this time the mother is a vexatious litigant. In order to give effect to the overarching purposes set out in the Act and the Rules, I will not make the order sought.
When the matter was listed for a mention on 25 February 2025 to understand the respondent’s position, an oral application was made to the Court by counsel for the father to make orders pursuant to s 102QAC of the Act (making harmful proceedings order). That section provides:
(1)A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:
(a)the other party would suffer harm if the first party instituted further proceedings against the other party; or
(b)in the case of child‑related proceedings (within the meaning of Part VII)—the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.
(2)For the purposes of subsection (1), harm may include, but is not limited to, the following:
(a) psychological harm or oppression;
(b) major mental distress;
(c) a detrimental effect on the other party’s capacity to care for a child;
(d) financial harm
(3)In determining whether to make an order under subsection (1), the court may have regard to:
(a)the history of the proceedings under this Act between the first party and the other party; and
(b)whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and
(c)the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).
(4)The court may make a harmful proceedings order on its own initiative or on application by a party to the proceedings.
(5)The court must not make a harmful proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
…
The written reasons of 10 August 2023 (Vanetti & Harrison (No 3) [2023] FedCFamC1F 698) dealing with the mother’s enforcement application put the mother on notice that she may face an application that she be declared a vexatious litigant. During the course of the hearing in this application, the mother made it clear that she would not stop initiating proceedings until she was successful in overturning the orders. The mother’s continued litigation is likely to cause the father harm in respect of each of the listed heads of harm under s 102QAC(2) of the Act if he is required to respond to repeated applications – whether they are to reopen proceedings or in regards to enforcement. The mother has stated in written and oral submissions that she will continue to make applications until she obtains the orders that she seeks. For these reasons, I will make orders pursuant to s 102QAC of the Act prohibiting the mother from making further applications without leave of the Court. The possibility of such an order being made was raised with the mother and she was adamant in her response to the Court that she would continue to litigate until she was successful.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 14 March 2025
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