Vanetti & Harrison (No 3)
[2023] FedCFamC1F 698
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vanetti & Harrison (No 3) [2023] FedCFamC1F 698
File number(s): MLC 11706 of 2019 Judgment of: BENNETT J Date of judgment: 10 August 2023 Catchwords: FAMILY LAW- PRACTICE & PROCEDURE – where self-represented litigant files enforcement application in respect of a parenting order under Chapter 11.2 of the Rules – where enforcement application does not seek to enforce the sole parental responsibility order recently granted in favour of the other party but seeks to direct the parent with sole parental responsibility as to how to exercise parental responsibility – where application is misconceived – where enforcement application is dismissed.
FAMILY LAW- PRACTICE & PROCEDURE –where the fifth principle for conducting child related proceedings is that proceedings are to be completed without undue delay and with as little formality and legal technicality as possible – where, in spite of the defective application, the court considered the applicant’s underlying grievance.
FAMILY LAW- PRACTICE & PROCEDURE – where unsuccessful party cautioned about possibility of a vexatious proceedings order if vexatious proceedings are instituted in the future.
Legislation: Family Law Act 1975 (Cth) s 102Q Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 10 August 2023 Place: Parramatta (via MS Teams) Counsel for the Applicant: Litigant in person Solicitor for the Respondent: Melbourne Family Lawyers ORDERS
MLC 11706 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VANETTI
Applicant
AND: MR HARRISON
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
10 AUGUST 2023
THE COURT ORDERS THAT:
1.The Application – Enforcement of the mother filed 30 July 2023 be and is hereby dismissed.
2.My reasons for decision be transcribed and, when settled, be placed on the Court file and a copy provided to the parties.
AND IT IS NOTED that there was no appearance by or on behalf of the independent children’s lawyer who is not funded for these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Vanetti & Harrison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREBENNETT J:
This matter comes before me on the mother’s application titled, “Application – Enforcement,” filed 30 July 2023 and in a form prescribed under Chapter 11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
Under Part C of the application the mother describes the order that she seeks to enforce as “2(a)(i) the children health (final order 12.07.2023)”.
The mother appears as a self-represented litigant. An interpreter in Country D language was provided for the mother but the mother preferred to communicate in English for most of the hearing. The mother’s s102NA legal representation has lapsed. The mother has not filed a notice of address for service, and there is no address on these documents she has filed. I will direct that the mother’s address for service be noted in the Court files as her current residential address, being AB Street, Suburb AC, Victoria.
Mr Rubino, solicitor, appears as counsel on behalf of the father. The father attends Court and has participated in the hearing.
The independent children’s lawyer has not participated in the hearing. I note that I made final orders in this matter on 12 July 2023, and that paragraph 23 of that order provided that:
The independent children’s lawyer be discharged as and from one month after delivery of these reasons, and it is requested that Victoria Legal Aid give favourable consideration to funding the extension of legal assistance to the independent children’s lawyer.
I am informed by Mr Rubino that, to the best of his knowledge, the independent children’s lawyer does know about the proceedings but is not in receipt of the grant of aid and, therefore, is not participating. That is understandable.
The hearing proceeded electronically on the courts’ MSTeams platform.
By way of context, this application is brought by the mother less than a fortnight after I made final orders and delivered reasons following a fully defended hearing of 10 days duration in 2022. The case neutral citation for my reasons for decision is [2023] FedCFamC1F 563. The mother has filed a Notice of Appeal in respect of the final orders. I am informed today that the appeal will be heard in September 2023 in Melbourne.
I have read the mother’s affidavit sworn or affirmed on 28 July 2023, heard some oral evidence from the father and have heard submissions by the mother and counsel for the father. I dismissed the mother’s application, provided ex tempore reasons for my decision and said that I would publish my reasons after revising and editing them from the transcript. These are those reasons.
Relevantly, the Order of 12 July 2023 provided as follows:-
2. Parental responsibility for [X] born […] 2014 (“[X]”) and [Y] born […] 2017 (“[Y]”) (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.
3. The children live with the father.
4. The 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.
[…]
12. Each 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).
[…]
22. The parties be permitted to provide a copy of this Order to the children’s respective schools and treating medical and allied health practitioners.
[…]
30. If a contravention or other application is filed within 24 months, any party filing the application or response thereto may request that the application be placed before me for directions as soon as possible without any intervening appearance or hearing before a Registrar.
The Order of 12 July 2023 has not been stayed, varied or discharged.
Part 11.2 of Chapter 11 of the Rules makes provision for enforcement of parenting orders, contravention of orders and contempt. Table 11.1 indicates that an enforcement application may be used if:
the party does not want the other party to the parenting order to be punished with a failure to comply with the order but wants to be compensated for the time not spent with a child as a result of the failure to comply …
Under Part E of the enforcement application, the mother seeks the following order:
[Mr Harrison] got granted the sole parental responsibility for health, and he must conduct [X’s medical] test.
The mother has explained to the Court, partially in her affidavit and partially by addressing the Court today, that on or about 6 April 2023 it was recommended by X’s specialist that X undergo a medical test. That is a test to collect data relevant to the diagnosis and treatment of X’s medical condition. The mother says that there has been no test, the father’s delay in arranging the test is too long and she wants the father to be compelled to arrange the test forthwith. The mother alleges that the father’s delay in X having any test amounts to medical neglect.
The father also gave evidence. The father’s evidence was that the neurologist who ordinarily treats X is Dr T. Dr T is on leave. In his absence, there is a Dr AM covering for him. The father’s evidence is that Dr T recommended a four-day test for X to be administered in the father’s home and in the mother’s home. That is, some part of the four days be in each of the parent’s home so as to properly observe X in his two principal environments. The father was informed that a four day test was considered preferable because the results from an earlier test were inconclusive because X had disconnected some equipment. Further, the child should be assessed in both homes because he may react or respond differently depending on his environment.
The father informed the mother that he requested her cooperation to administer the tests to X during a period of her spending time with X. The mother has refused. It is the mother’s case, made clear by the mother to the Court today, that she will assist in X having a test only insofar as she will relieve the father of care of Y, the younger child, during X’s test, but she will not administer or cooperate with the test in her own residence. She says the reason for that is that she does not have the support to enable her to do so. The mother says that, in contrast, the father has three nannies who can support him.
The reference by the mother to the nannies resonated strongly with the mother’s criticism during the final hearing of the father’s use of nannies. The mother made that statement, with the same facetious manner as she had during the final hearing when explaining that she required a day to herself each weekend so the father would have to look after the children if she decided not to spend time with the boys in accordance with the prevailing parenting order. Here, she said that the father was given sole parental responsibility so now he has to have X tested.
The mother relied on a letter from Dr AM dated 24 July 2023 which, omitting formal and irrelevant parts, reads:
Dear Guardian of [X]: [Mr Harrison] and [Ms Vanetti],
I reviewed [X] in my clinic today. I am covering for [Dr T] while he is on leave.
[A test] was advised and requested for [X] on 6/4/2023. The purpose of the [test] is to investigate ongoing [medical] events reported at home and at school. The result of the [test] will inform ongoing treatment and medication plans for [X]. I understand the [test] has not yet taken place.
It is the medical recommendation that [X] undergoes this [test] and I strongly encourage you to follow through with this booked appointment.
The father’s evidence is that he has now accepted that the mother will not cooperate with X being tested in her residence and, therefore, he will go back to the Dr T doctor to arrange what, in all probability, may be a shorter test of some two days, to be done in his residence alone. The father’s evidence was that Dr T discussed a number of alternatives to administer the test.
The father is aware of his obligations under the Order made on 19 July 2023, amongst other things, to consult with the mother in relation to any issues arising in relation to the children’s health and that the parties make a genuine effort to come to a joint decision about any such issues. However, if no agreement is reached, then the father is to make the final decision and advise the mother in writing of any such decision.
I accept that the letter from Dr AM is evidence that it is in X’s interests to have the test as soon as possible. The father’s evidence was that he will seek another referral from Dr T for a test for which X is not monitored in the mother’s home. I accept that evidence.
By the enforcement application under consideration, the mother is not seeking to enforce the order for sole parental responsibility in favour of the father. Rather, she is seeking to dictate how the father ought to exercise his sole parental responsibility on an issue pertaining to X’s health. The enforcement application is misconceived and should be dismissed.
I am mindful that the fifth principle for conducting child related proceedings is that proceedings are to be completed without undue delay and with as little formality and legal technicality as possible. I have endeavoured to do that in this case. For the avoidance of doubt, I did not consider the fact that the application was misconceived to be entirely dispositive. I did have regard to the mother’s underlying grievance which is that the father should have made arrangements for a medical test for X much earlier than he says that he will now proceed to do. That appears to be supported by Dr AM’s correspondence. However, I would want to hear from Dr T about his recommendations for the timing of the test before concluding, for whatever purpose it could serve, that the father has been neglectful.
I make two observations in respect of the mother’s grievance. First, the letter from Dr AM is addressed to the father and the mother as “guardians” of X. The mother confirmed that her consultation with Dr AM had been by video conferencing rather than face to face and that X did not participate. However, it appears that the mother did not advise Dr AM that the father has sole parental responsibility for matters pertaining to X’s health. I expect that, had the mother told Dr AM that she no longer had parental responsibility status, Dr AM would have recognised that she should have been consulting with the father and not the mother to the exclusion of the father in relation to X.
Second, whilst I do not doubt the mother’s genuine regard for X’s health, I observed the mother’s demeanour to be one of self-satisfaction and for her attitude to be, as the father has obtained sole parental responsibility, he must now suffer the result and consequences of having done so. It is not a child focussed perspective.
I will order that the enforcement application be dismissed.
There was no application for costs. The father’s solicitor informed the court that he was not charging professional fees for today’s appearance. Mr Rubino has calm demeanour and was well prepared to make submissions. He showed admirable restraint in not going into print in response to the mother’s application which, self-evidently, had no prospect of success. Mr Rubino did not react to the mother’s goading comments about the legal expenses incurred by the father or her statements that the father’s legal costs would be better spent on tuition expenses for Y rather than on Mr Rubino. The mother stated that she does not have to pay lawyers and that the father would be much better off if he withdrew his instructions from Mr Rubino and spoke directly to her about X and any other child related issues. My assessment is that direct communication with the mother is not something the father seeks or considers viable at this stage.
The next matter I raised with the parties was the potential for a vexatious proceedings order within the meaning of s 102Q of the Family Law Act 1975 (Cth). A vexatious proceedings order is a necessary first step in prohibiting a litigant from filing applications without first obtaining leave of the court to do so. It is one way in which the court can restrict a litigant from filing nuisance applications or, more particularly, vexatious proceedings as defined in s 102Q as including:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
The father did not make an application that the mother’s enforcement application be declared a vexatious proceeding. Indeed Mr Rubino stated that he was instructed not to make the application in this instance but that his client would consider doing so if he is again faced with a similarly misconceived application.
The court can make a vexatious proceedings order on its own initiative. I am not satisfied that the mother’s enforcement application is vexatious in this instance but the mother should not feel encouraged to make more applications like the enforcement application I have just dismissed. It is sufficient to put the mother on notice that she should familiarise herself with the Part XIB – Division 2 – Vexatious Proceedings Orders under the Act in case she faces an application in that regard at some future time.
For the above reasons, I have made the Order set out at the commencement of these reasons.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 18 August 2023