McNaulty & McNaulty (No 5) [2025] FedCFamC1F 859 (26 November 2025)

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 11 March 2024, with the consent of the parties, I pronounced final parenting orders in respect of their two children, X and Y. Those orders provide for the applicant and the respondent to have equal shared parental responsibility for the children, for them to reside with the applicant and for them to spend all of their June/July and half of their Christmas school holidays with the respondent.
2. The applicant lives in Australia with the children.
3. The respondent lives in the United States of America with her present husband Mr C. By order 8, the respondent may elect for the children's school holiday time with her to occur in the United States of America or such other place or places as she might nominate in accordance with the orders.
4. By his Application in a Proceeding filed on 13 November 2025 the applicant, the children's father, seeks that those orders be varied in certain respects. Leaving aside a typographical correction to order 4, the variations he seeks are to the effect that the children's time with the respondent should take place in Australia. He seeks a further variation that deals with him taking the children outside of Australia but only to Hague convention countries.
5. The respondent, the children's mother, opposes the orders and seek her own orders. They are set out in her Response to an Application in a Proceeding filed on 20 November 2025 and, rather than paraphrase them, I set them out:

1. That Mr [McNaulty's] application be dismissed on the basis that there has been no material change in his circumstances since the orders of the Honourable Justice Jarrett dated 11th March 2024. His application fails to demonstrate a significant change in circumstances and it constitutes an abuse of process, is vexatious, is part of his cohersive (sic) behaviour and is contrary to the childrens (sic) best interests.

1. That Mr [McNaulty] be declared a vexatious litigant in accordance with S.102QB of The Family Law Act 1975. 2. That Mr [McNaulty] be prohibited from instituting any further proceedings under The Family Law Act 1975 without first obtaining leave of the court. That in considering any further application for leave the court have regard to the ongoing financial and emotional harm to the respondent and the children. 3. That [Ms McNaulty], the mother, may authorise the maternal grandfather [Mr AB] (or another trusted adult authorised by the mother) to accompany the children to any medical or administrative appointments within Australia related to the childrens (sic) Green card/visa applications and to sign documents limited to the purposes of those appointments. The Father shall deliver the childrens (sic) passports to the authorised representative for the purpose of related to their visa applications. 4. Variation of parenting orders made 11th March 2024 to provide that the children live with the mother on the grounds of a substantial change in circumstances concerning the final stages of the childrens (sic) U.S permanent residency status, their stability, safety and their best interests. 5. That Mr [McNaulty] immediately pay all monies plus interest to [Ms McNaulty] for the Binding Financial Agreement dated June 2022
2. For the reasons that follow, all of the orders sought by the applicant and the respondent, save for the typographical correction to order 4 will be dismissed.
3. As the respondent recognises, s 65DAAA of the Family Law Act 1975 (Cth) is engaged on this application. That section provides:

65DAAA Reconsideration of final parenting orders

(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.

1. The applicant's case is based upon a perceived risk to the children from Mr C should the children travel to the United States.
2. The applicant's evidence is that in May 2025 he became aware, through text messaging that he had with the respondent, that her relationship with Mr C was unstable. The respondent's message of 17 May 2025 makes clear that the respondent had "filed for divorce" from Mr C. Given the impending school holiday time with the children, the respondent notified the applicant that she was unsure as to whether the time would occur in Australia or the United States of America. In a subsequent message of 27 May 2025, the respondent said that she had not "lodged the divorce documents with the court."
3. As matters turned out, the children travelled to the United States for the June/July school holidays in June 2025. The applicant annexes copies of a two-page SMS exchange sent by the child X to Mr C, but the significance of the exchange is not explained by the applicant or by his senior counsel in submissions. Its relevance remains a mystery. What is clear is that X was anxious to see Mr C and did not seem to be frightened of him.
4. Also annexed to his affidavit are "screenshots of a 'pros and cons' list" the applicant says was made by the child X and the respondent on 30th June 2025. Again, the significance of the exchange is not explained by the applicant or by his senior counsel in submissions. Its relevance remains a mystery.
5. By July 2025, it seems that the children may have returned to Australia. The applicant says that he was concerned about Y having an ear infection because that is what X told him. He does not say where she got that information from. He took the issue up with the respondent who gave the completely plausible explanation that she thought that "it" was just water in Y's ear from "jumping in the pool over and over again".
6. On 22 July 2025, the applicant corresponded with the respondent via text message asking to have "a phone call to discuss matters". The applicant said that he preferred that the respondent was on her own when they talked, although he did not say why that was his preference. There is no evidence that the parties spoke by telephone.
7. Instead, on 23 July 2025 the applicant sent a text message to the respondent in which he said "I'm concerned about the kids safety around [Mr C]". Thereafter followed an exchange of messages from which the following is clear:

(a) the relationship between the respondent and Mr C was not stable;

(b) Mr C gets angry sometimes;

(c) the respondent is scared when Mr C gets angry;

(d) Mr C has not been physically abusive to her;

(e) the respondent had served divorce papers on Mr C and he came to collect his belonging and the respondent called the police because he was taking their car;

(f) there was an incident in "..." just before the children arrived for their time with the respondent. Mr C got drunk, punched walls, threatened to drown the respondent, grabbed her, threatened to throw her out of a hotel window, caused $3,000 damaged to the hotel and passed out. The respondent went to get the children from the airport using the hotel shuttle and she, Mr C and the children missed their connecting flight to take them to where the children were going to spend their time;

(g) although Mr C consumes alcohol, he does not do so when the children are with the respondent;

(h) the respondent and Mr C have talked about the "..." incident and the respondent is adamant Mr C would never hurt the children or expose them to harm; and

(i) if the respondent considered that the children will not be safe, she will let the applicant know.

1. On 9 October 2025, the applicant had his solicitor write to the respondent setting out his concerns. Those concerns set out in the letter are based on many facts which are not in the evidence before me.
2. The respondent takes issue with the veracity of some of the text messages relied upon by the applicant, labelling them as "false" and suggesting that they have been "materially altered". It is unnecessary to determine if this is the case because on the applicant's own evidence, there has been no significant change of circumstances since the final parenting order sufficient to warrant the revisiting of the welfare of these children. The happenings in the respondent's relationship with Mr C are nothing more than part of the usual course of human activity (King & Finneran (2001) FLC 93-079 at [49]). Whilst it seems that there was a particularly difficult altercation (the "...") incident), the evidence does not demonstrate any risk to the children, either then or since.
3. Moreover, the tone of the conversation revealed by the long text message exchange between the applicant and the respondent (part of annexure MRMCN-4 to the applicant's affidavit) demonstrates good communication between the applicant and the respondent. The discussion is open and frank. The respondent impresses as genuine in her remarks to the applicant about her relationship with Mr C and her assessment of the risk he presents, both to her and the children. Thus, even if I am wrong and the change in the relationship and the attendant incidents upon which the applicant relies satisfy the requirement for there to be a significant change in circumstances, nonetheless I am not satisfied that it is in the best interests of these children for the final parenting order to be reconsidered.
4. I turn now to the relief sought by the respondent.
5. No proper basis is demonstrated in the evidence for there to be an order pursuant to s 102QB of the Act. Her evidence is woefully short to engage the relevant discretion.
6. The respondent seeks an order that she be able to authorise another person to accompany the children to certain medical or administrative appointments for the purpose of "green card" applications that apparently Mr C has made in the United States of America.
7. This issue is dealt with only in passing in the respondent's affidavit evidence. She addressed it briefly in her oral submissions. It is of significant concern.
8. The current order provides for the parties to have equal shared parental responsibility for decisions concerning major long-term issues for the children. The issue of a permission for the children to reside permanently in another country is a matter that I consider is clearly a major long-term issue for the children. It must also be considered so by the respondent because she refers to the impending issue of a green card for the children as a matter that goes to informing a change of circumstances sufficient for there to be a wholesale rearrangement of the current parenting orders.
9. That there should be an application for "green cards" for the children is a matter for which the applicant and the respondent must exercise their shared parental responsibility. It is a matter about which the applicant and the respondent must reach an agreement one way or the other. It is clear from the respondent's argument that she has permitted Mr C to make applications for "green cards" for these children when he plainly has no parental authority to do so. The respondent's acquiescence in this course is a contravention of the order for equal shared parental responsibility. The orders sought by the respondent in respect of the children's medical and administrative appointments for their "green cards" are entirely inappropriate and I refuse to make them.
10. So too, the respondent's application for an entirely fresh set of parenting orders. Her evidence comes nowhere towards establishing that there has been a significant change in the circumstances for these children. She does not overcome the requirements of s 65DAAA of the Act.
11. Aside from the correction of the typographical error in order 4 of the orders made on 11 March 2024, the Application in a Proceeding filed on 13 November 2025 and the Response to an Application in a Proceeding filed on 20 November 2025 are dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.