Accola & Maddin (No 3)

Case [2021] FCCA 1261

FEDERAL CIRCUIT COURT OF AUSTRALIA

Accola & Maddin (No 3) [2021] FCCA 1261

File number(s): ADC 1214 of 2016
Judgment of: JUDGE BROWN
Date of judgment: 9 June 2021
Catchwords: FAMILY LAW – application for costs following interim hearings – failure of parent to return child following school holiday contact – parent retaining child claimed child at risk of emotional harm if returned – child ordered to be returned to residential parent – residential parent seeks award of costs on indemnity basis – matters to be considered
Legislation: Family Law Act 1975 (Cth)
Federal Circuit Court Act 1999 (Cth) 
Federal Circuit Court Rules 2001 (Cth)
Cases cited: Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Inthe Marriage of Kohan (1992) 16 Fam LR 245
Marvel & Marvel (No 2) [2010] FamCAFC 101
Sawyer & Clancy (No 2) [2012] FMCAfam 1369
Accola & Maddin  [2020] FCCA 3643
Accola & Maddin(No 2) [2020] FCCA 3644
Zahawi & Rayne [2016] FamCAFC 90
Number of paragraphs: 115
Date of last submission/s: 22 March 2021
Date of hearing: 22 March 2021
Place: Adelaide
Solicitor for the Applicant: Belchamber Legal
Counsel for the Applicant: Ms Dickson QC
Counsel for the Respondent: The Respondent in person
Counsel for the Independent Children's Lawyer: No Appearance

ORDERS

ADC 1214 of 2016
BETWEEN:

MR ACCOLA

Applicant
AND:

MS MADDIN

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

9 JUNE 2021

THE COURT ORDERS THAT:

1.That the Respondent pay a lump sum of costs to the Applicant fixed at FIVE THOUSAND DOLLARS ($5,000.00).

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 under the pseudonym Accola & Maddin (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BROWN:

INTRODUCTION

  1. The background to this matter is set out in two previous judgments delivered ex tempore on 10 June and 18 June last year respectively.[1]  Given the controversies still exist between the parties, these reasons have been transcribed and will be released to the parties concurrently with these reasons.

    [1]  Accola & Maddin [2020] FCCA 3643 and Accola & Maddin (No 2) [2020] FCCA 3644.

  2. The case, which is ongoing, concerns parenting arrangements for two children X and Y born in 2009 and 2005 respectively. 

  3. This matter raises issues relating to the views of the children concerned; whether the siblings should be separated; within the context of a possible interstate relocation.  These issues remain highly controversial.

  4. As a consequence of a Court order, made by consent order on 30 September 2016, the children were directed to live with their father, Mr Accola, in Adelaide and spend regular periods of time, with their mother, Ms Maddin, who lives in the Region B region of Queensland. 

  5. The current controversy arose when X was not returned by the…

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AGLC
Accola and Maddin (No 3) [2021] FCCA 1261
Case
[2021] FCCA 1261
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Accola against Ms Maddin. The dispute involved proceedings related to the welfare of a child, X, in highly polarised circumstances where the parents held fundamentally different views on what constituted the child's best interests. The decision was made by Brown J of the Federal Circuit and Family Court of Australia.

The court was required to determine how to resolve the dispute between the parties, particularly in light of their financial circumstances and the emotional intensity of the case. A key issue was the appropriate approach to costs, given that neither party appeared to have the financial capacity to sustain the litigation, yet both had pursued it without apparent hesitation. The court also had to consider the implications of Ms Maddin's actions in not returning the child, X, following an interim order.

Brown J acknowledged the inherent difficulty in resolving interim proceedings concerning child welfare, especially when parents have deeply entrenched and opposing views. The court noted that in such emotionally charged situations, the focus on a child's safety can overshadow financial considerations. Despite the financial constraints of both parties, the court recognised its obligation to make a just award of costs. The judge found that Ms Maddin's concerns about the child's welfare had a rational basis and should not be dismissed, but also acknowledged that her subsequent actions, including not returning the child after an interim order, carried considerable risks.

The court ordered that Ms Maddin pay a lump sum of costs to Mr Accola fixed at $5,000.00.

Orders

Orders of the court

ADC 1214 of 2016

BETWEEN:

MR ACCOLA

Applicant

AND:

MS MADDIN

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

9 JUNE 2021

THE COURT ORDERS THAT:

1. That the Respondent pay a lump sum of costs to the Applicant fixed at FIVE THOUSAND DOLLARS ($5,000.00).

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not consider that there are any other matter to which I need have regard.CONCLUSION Any case involving the welfare of child, in polarised circumstances, in which the parents concerned disagree fundamentally about what will be in the best interests of their child, are extraordinarily difficult for the Court to resolve in the context of interim proceedings. In addition, such situations are not always amenable to parents making cold and dispassionate assessments as to their respective potential exposure to costs. Necessarily, where issues are raised about the fundamental safety of a child, the focus of parents will be on the welfare of the child concerned, with cold blooded consideration about any ancillary financial implications occurring later. Co-parenting relationship characterised by a long history of mistrust and compromised communication provide fertile ground for suspicions to fester and concerns about the safety of children to grow, in the minds of parents, exponentially. In addition, it is not unknown for some children, in such conflicted situations to play both ends off against the middle. At the same time, the costs of being legally represented, in such cases, even for the wealthier members of our society, are prohibitively expensive. However, there must be mechanisms to resolve disputes between parents, both provisionally and finally, in all matters regardless of their emotional quotient and expense. It is painfully self-apparent that neither party can afford this litigation. On the information each has provided to the Court neither of them has access to liquid assets to pay their respective legal advisors, yet each has pursued these confrontation proceedings, without apparent demur. In all these circumstances, the Court is placed in an invidious position. In this difficult topography, it must make the best decision it can, whilst being well aware that whatever decision it does make may have to be changed and will be viewed as incorrect by at least one of the parents concerned. However, the situation of dispute between the parties requires the Court to make a decision. The Court’s fundamental obligation, in such proceedings, when it comes to any award of costs, is to do what it considers just. In my view, this entails the Court doing what it does is in accordance with what is fair and morally right. Given the passions precipitated by this case, which focussed on the safety of X, I do not consider that it would be right for the Court to penalise Ms Maddin’s concerns about the child out of hand or assess them as having no basis at all. Clearly, there was a rational basis for her to be deeply worried about how X was travelling emotionally at the time. On the other hand, her stance did entail considerable risks, given the existence of the prior order. In addition, to some extent, following the first hearing, Ms Maddin elected to double down, in effect, and not return X, knowing what the Court had determined was the best outcome possible for the children concerned at the interim stage.

Ratio Decidendi

Legal Principle Established

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