Accola & Maddin (No 3)
[2021] FCCA 1261
•9 June 2021
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 90Number 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
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.
The case, which is ongoing, concerns parenting arrangements for two children X and Y born in 2009 and 2005 respectively.
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.
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.
The current controversy arose when X was not returned by the mother, to the father, following a period of holiday time in Queensland, in April of this year. As a consequence, the father commenced urgent recovery proceedings in the Court’s Adelaide registry.
The mother countered with her own application seeking that X live with her in Queensland, on the basis that to compel the child to return to Adelaide, ostensibly against her will and in the face of corroborative expert psychological evidence, would potentially put X at grave risk of coming to serious emotional harm.
The case arose at a point of crisis for the family, which X’s parents themselves, as a consequence of endemic communication problems between them, had no capacity to resolve through any calm and respectful discussions centred on what was best for X.
Rather, the issue was presented to the Court as a zero sum game. Either X was returned or she remained in Queensland, pending more information being gathered. No compromise was possible between these two polar extremes. On any view, this was highly regrettable.
As the Full Court of the Family Court recently remarked, the simple fact that a judge must determine what is in a child’s best interests is ‘axiomatically’ not in that child’s best interests.[2] Rather:
What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests.[3]
[2] Zahawi & Rayne [2016] FamCAFC 90, 99 [47] (Thackray, Murphy and Austin JJ).
[3] Ibid.
This decision, obviously of some moment for X and replete with competing considerations, had to be made in the context of a truncated hearing, based on hastily prepared and contradictory affidavit material, which again served to emphasise issues about which the parties fundamentally disagreed.
Ultimately, I determined that X should be returned to her father’s care in Adelaide in accordance with the longstanding Court mandated parenting regime. However, in deference to the serious issues raised by the mother, I appointed an Independent Children’s Lawyer and put in place a mechanism for an independent expert to canvas the views of both children concerned and report back to the Court.
Against this background, the father has brought an application for costs, on an indemnity basis, in an amount of $21,462.00, together with expenses incurred by him in respect of collecting X from Brisbane, in an amount of $1,717.00.
It is his position that the stance adopted by him, in the case, has been vindicated by the order for X’s return made by the Court and he put the mother on notice that he would be seeking his full costs, prior to the two interim hearings taking place.
In addition, he has deposed that he can ill afford the costs of these proceedings, which were necessitated by the mother’s failure to abide the Court’s order. It is his case that these factors, in combination, justify the significant level of costs sort by him.
On the other hand, it is the mother’s position that the issues ventilated by her were of such moment, relating as they did to concerns that X was at risk of self-harm, that she had no viable alternative other than to do what she did, which was to oppose X’s return to Adelaide and leave it to the Court to resolve the difficult issue which had arisen.
In this context, it is the mother’s position that the stance adopted by her, throughout the now concluded interim proceedings, has been vindicated by the report of the Family Consultant, who was directed to interview both X and Y, at a Child Inclusive Conference, which occurred on 18 August 2020.
This conference was convened by Ms C, an experienced Family Consultant. It was not possible for the Court to adjourn the interim hearing until this report was obtained. Mr Accola pressed for the Court to deal with his application.
As with the reports and the opinions of Dr D and Ms E before her, Ms C’s opinion and methodology have not been subject to any scrutiny through cross-examination. However, in my view, she had a significant advantage over both Dr D and Ms E in the sense that she was able to interview both parents and children, in the context of the totality of the affidavit material filed in the proceedings.
To Ms C, Mr Accola characterised X as a ‘difficult child’ who experienced ‘melt downs’, which were difficult to manage.[4] In this context, he categorised himself as the parent who had done the ‘tough job’ of parenting X, whilst Ms Maddin was the ‘holiday parent’.[5] To his credit, Mr Accola acknowledged that he had found sole parenting stressful from time to time, and, as a result, had not always behaved as he would have wanted.[6]
[4] Child Inclusive Conference Memorandum prepared by Ms C dated 19 August 2020, page 3.
[5] Ibid.
[6] Ibid.
Ms C’s impression of Ms Maddin was of an emotional person, who described the last four years of her life, whilst she had lived in Queensland away from the children, as being driven by guilt. As indicated in the earlier judgments, it is the underpinning of her case that, during her marriage with Mr Accola, in Adelaide, she was subject to a significant level of coercive and controlling violence by him.
Given these competing perspectives, it is not difficult for me to envisage X herself being subjected to a significant level of emotional tumult. It is also apparent that she is a child who is, at times, challenging to parent. Mr Accola, in particular, accepted that X was torn between her parents but asserted that Ms Maddin took advantage of this state of affairs.
In contrast, Y, at age 15, was described by Ms C as ‘an impressive, competent and self-assured adolescent’.[7] Y’s preference is to remain living in Adelaide, with her father. However, she spoke positively of her mother and partner.
[7] Ibid page 4.
In this context, she expressed some sadness at her lack of proximity to her mother, but, in Ms C’s view with a significant level of insight, Y indicated that she understood why her mother had felt that she had to move to Queensland in 2016.
When questioned about X, Y indicated as follows to Ms C:
•Y also said that ‘X can be very difficult’ and when asked to explain said that her behaviour is a ‘bit of a challenge’. She then talked about the time she, her sister and father lived with her grandparents and how this was a ‘stressful’ time for them all. She believes ‘Dad did struggle a bit’ but believes that in the main, he managed X ‘as best he could’.
•Y also believes X has the tendency to ‘twist’ things a little’ and when asked to explain, said that ‘X will be upset and call mum and mum sort of puts words in her mouth’ which then reinforce how X is feeling. Y said this doesn’t happen ‘all of the time’, but she feels that sometimes this makes it worse for X.
•Despite these misgivings, Y said she knows her mother loves them very much and that she is probably trying to do her best for both of them. She believes X should live with her mother.[8]
[8] Ibid page 5.
X began her interview with Ms C by voicing her desire to live with her mother and to state her complaints about her father’s conduct towards her, which allegedly involved Mr Accola screaming and swearing. However, X herself conceded that she was not behaving at the time.
X described some tensions between her and the father’s current partner but spoke positively in respect of Ms Maddin’s husband. X also complained that she felt subject to derogatory comments, about her appearance, whilst she lived in Adelaide.
Ms C summarised some of the salient features of X’s interview with her as follows:
•X believes her mother’s move to Queensland was the ‘right’ thing for her. She said she wants her mother to be ‘happy’, but she believes her father ‘hates her mother for having done that’. She said ‘he (her father) is not nice to my mum’. When asked how she knew that, said she has heard her father say ‘mean’ things about her mother.
•Despite her concerns, X said she knows she is loved by both parents. She said she gets hugs from both of her parents, but there are times when she doesn’t want to be hugged by her father, in particular. She said there are times when she is ‘not ready’.
•X reiterated a strong desire to live with her mother. She said she would like to go ‘now’, but if not now, she might consider at the end of school term, this year.[9]
[9] Ibid page 6.
The tenor of Ms C’s memorandum to the Court was that X was at risk of suffering emotional damage as a consequence of the conflict between her parents. In summary, Mr Accola, whilst open, in principal, to the prospect of X’s wish to move to Queensland being actioned, was concerned that Ms Maddin would attempt to completely alienate the child from him. In addition, he was concerned at the implications of the move for X’s educational advancement.
For her part, Ms Maddin was of the view that X’s views were genuine and uninfluenced by her own feelings. However, she was concerned that the father would not be capable of accepting X’s views and would continue to do whatever he could to fight her (Ms Maddin).
Under the heading ‘future directions’, Ms C wrote as follows:
•X is of an age where difficulties with managing strong feelings are likely to be reflected in changes of moods, social relationships and learning. These difficulties often mean a child is preoccupied with adversity or having difficulty with processing and reconciling changing or conflicting viewpoints. This might account for some of her statements around self-harm and her feelings of being over-whelmed at times. The psychological burden this child feels needs to be lifted somehow. And, as was explained to the father, X’s emotional state needs to be more important than her schooling, as a child struggles to learn if they are feeling this psychological burden.
•X appears to have borne the brunt of her parent’s conflict and this is manifesting in some of the behaviours that are being seen. X also feels she is the ‘difficult’ child and this narrative appeared to feature in a number of the conversations.
•The Court might wish to consider X going to live with her mother at the completion of this year of schooling. This will allow for any changes to be made while she is still in primary school and therefore there will be no disruption to her High School Years.[10]
[10] Ibid page 7.
It is Ms Maddin’s position, vis-à-vis the father’s costs application that Ms C’s report provides a strong justification for the Court to regard her (Ms Maddin’s) stance in the interim proceedings as being justified and, in itself, as one which cannot be categorised as being capricious or self-serving in nature.
In addition, given the contents of the report, it is her view that the father’s assertion that she has been wholly unsuccessful, in the proceedings to date, must be regarded as something of a simplistic reduction.
Essentially, it is her case that it is axiomatic that the case has a long way to go still, unless it is resolved consensually and the prospects of her being ultimately proved to be successful, certainly so far as X is concerned, must be regarded as good. Accordingly, in this context, it would be unjust to award a significant sum of costs against her.
THE LEGAL PRINCIPLES APPLICABLE
Section 117(1) of the Family Law Act 1975 (Cth) (‘the Act’) abolishes for the purpose of family law proceedings, the general rule that, in civil proceedings, costs follow the event. It provides that each party should bear his or her own costs in such proceedings.
However, pursuant to section 117(2), if the Court is of the opinion that there are circumstances that justify it in doing so, it may, subject to a number of stipulated considerations, make such order as to costs as it considers just.
The relevant considerations are set out in section 117(2A) of the Act and are as follows:
•The financial circumstances of each of the parties to the proceedings;
•Whether any party to the proceedings is in receipt of legal aid;
•The conduct of the parties to the proceedings, including in respect of issues of discovery and production of documents;
•Whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court;
•Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
•Whether any party has made an offer in writing to settle the proceedings and the terms of any such offer;
•Such other matters as the court considers relevant.[11]
[11] Family Law Act 1975 (Cth) s 117(2A).
The Court’s discretion to make an order for costs is a wide one and includes the authority to make an order for indemnity costs. However, the discretion remains one which must be exercised carefully and judicially.
In this context, orders for indemnity costs are extraordinary or exceptional in nature. The Full Court of the Family Court noted Inthe Marriage of Kohan that an order for indemnity costs as ‘being a very great departure from the normal standard’.[12] In this context, the Full Court said as follows:
The court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind.[13]
[12] In the Marriage of Kohan (1992) 16 Fam LR 245, 254 (Strauss, Lindenmayer and Bulley JJ).
[13] Ibid 258.
There is no closed category of cases in which indemnity costs may appropriately be awarded. However, in Colgate Palmolive Co v Cussons Pty Ltd,[14] the Full Court of the Federal Court indicated that the kinds of situation in which indemnity costs might be considered included those in which a litigant had:
•Commenced or continued an action knowing it to have no chance of success;
•Made false or irrelevant allegations of fraud;
•Made groundless allegations, which prolonged the case concerned; and
•Imprudently refused an offer to compromise.[15]
[14] (1993) 46 FCR 225.
[15] Ibid 231, 233 (Sheppard J).
If the Court determines to make an order for costs, it has a wide discretion as to the calculation of such costs. Pursuant to Rule 21.02(2) of the Federal Circuit Court Rules 2001 (Cth):
In making an order for costs in a proceeding, the Court may:
(a)set the amount of the costs; or
(b)set the method by which the costs are to be calculated; or
(c)refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of the costs, which may be before the proceeding is concluded.[16]
[16] Federal Circuit Court Rules 2001 (Cth) r 21.02(2).
Accordingly, the discretion provided by Rule 21.02(2) provides potential different mechanisms, for the awarding of costs, under either the rules of this Court or the Family Court or indeed on a generic discretionary basis. This is reflective of the potential differences, particularly in respect of issues of complexity, which may arise from the nature of the jurisdiction conducted in each Court.
However, Rule 21.10 of the Federal Circuit Court Rules 2001 (Cth) provides a minimum level of entitlement, in respect of any award of costs, if made by the Federal Circuit Court. The rule provides as follows:
Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1; and
(b) disbursements properly incurred.[17]
[17] Ibid r 21.10.
Pursuant to Rule 21.15 the Court may certify that it was reasonable for any party to employ an advocate to appear on his or her behalf in a proceedings. If such a certification is made, the amount payable for counsel to appear is the ‘daily hearing fee and advocacy loading in accordance with parts 1 & 2 of Schedule 1’.[18]
[18] Ibid r 21.16.
Rule 21.10 and the schedule under it create a scale of costs by reference to the occurrence of fixed events.[19] The procedure in question is clearly designed to allow the ready calculation of costs incurred following the various procedural stages of litigation from filing to finalisation with judgment.
[19] Ibid r 21.10.
It is a system which is most amenable, in its application, to less complex forms of litigation. In my view, this mechanism was in keeping with the objects of the Federal Circuit Court as set out in section 3(2) of the Federal Circuit Court Act 1999 (Cth),which include the following:
•To enable the Federal Circuit Court to operate as informally as possible in the exercise of judicial power; and
•To enable the Federal Circuit Court to use streamlined procedures; and
•To encourage the use of a range of appropriate resolution dispute processes.[20]
[20] Federal Circuit Court Act 1999 (Cth) s 3(2).
DISCUSSION
At the outset, although it is somewhat trite to say so, proceedings involving former spouses, particularly those who have significant deficits in their capacity to communicate effectively, are invariably emotionally charged and frequently characterised by significant levels of mistrust and suspicion. This is particularly so in cases involving children.
Such scenarios provides fertile soil in which suspicions about the other parent concerned can easily grow and multiply. In addition, children cannot always be relied upon to provide exact reportage of what has or has not happened to them in one or other of their parents’ households. Children may have their own agendas and be inclined to play both ends against the middle.
A concerned and loving parent is naturally not inclined to disbelieve an account provided by a child of mistreatment at the hands of the other parent, particularly if the first parent harbours only feelings of mistrust and resentment for the second parent, from whom he or she is long estranged.
Such circumstances do not provide any obvious or easy circuit breakers, which enable an easy exchange of information about the child concerned, so that any risks pertaining to that child can be readily identified, in order that any problems arising therefrom may be approached consensually and litigation, with all its inherently deleterious consequences, for both parents and children, avoided.
In this particular case, there have long been mutual concerns about how X is travelling emotionally and the implications of this in terms of her relationship with her mother, which is subject to the significant vicissitudes of distance. It is to be expected, in these circumstances, that X would feel torn in her loyalties and love for each of her parents. Axiomatically, it is not the optimal regime for the parenting of a child.
Mr Accola acknowledges that he has sought psychological assistance in respect of X and she is not without her challenges in respect of her parenting, although it is undoubtedly the case that she is much loved by both her father and mother. It also seems more probable than not that she is a child who is not temperamentally disinclined to be reticent about the expressions of any feelings of unfairness she may perceive about her treatment.
These types of situations do not easily assist long separated parents to be completely dispassionate or subjective about whether to institute parenting litigation or how to respond to it. Individuals, for obvious reasons, do not behave pragmatically or always in their objective best interests, when under stress or subject to serious concerns about the welfare of their children.
In my view, this was a difficult and finely balanced case, arising at an interim stage, at which the vast majority of the evidence was both hidden and controversial. However, the fact that X was emotionally upset cannot be doubted. Mr Accola acknowledges that he engaged Dr D to assist him with managing X’s situation.
Whether Ms Maddin can be characterised as being disingenuous, manipulative or motivated by her own perception of tactical advantage, in her own engagement of Dr D is not an issue which can be resolved in the course of the present proceedings.
However, in my view, it must be the case, including in the light of what Family Consultant Ms C has subsequently reported that she (Ms Maddin) was called upon to respond to an on-going emotional crisis in the child’s life, which led to her decision not to return the child to Adelaide.
As such, at the interim stage, there was a genuine issue of risk, pertaining to X’s on-going psychological health, which the Court was called upon to adjudicate. Given the issues raised, in my view, different minds, including judicial minds, could reach different conclusions about the extent of the risk arising for X, at the interim stage, and what was the appropriate response to it.
Accordingly, in my view, this was a case which was genuinely focussed on the assessment of risk, so far as X was concerned. In these circumstances, I do not consider that it is open to me to characterise Ms Maddin’s behaviour as being either capricious or calculating only on the basis that the Court took a different view to hers in respect of how that risk should be approached.
The situation confronting Mr Accola presented him with a significant dilemma. He had been conferred with a residential order, in his favour, pertaining to both Y and X. It was long standing in nature and based on consent. Ms Maddin had not herself sought to vary or discharge that order.
In these circumstances, he could either acquiesce to Ms Maddin’s unilateral actions in respect of X, with which he fervently disagreed, or institute further litigation to enforce the order earlier made in his favour, which had led to the children going to Queensland for the school holiday.
Accordingly, in my view, too a large extent, neither party had any viable alternative other than to become involved in further litigation. The mother felt compelled to act on the concerns raised by X; the father to ensure the compulsory return of the child to his care, in compliance with the Court’s order.
If any criticism can attach to Ms Maddin’s conduct, it is that she did not more expeditiously instigate proceedings rather than preferring to behave reactively to Mr Accola’s inevitable application for return. Against this background, I will now turn to consider the various consideration outlined in section 117(2) of the Act.
Financial circumstances of the parties
It is the father’s position that he is currently unemployed and in receipt of social security payments and has been so since the onset of the pandemic emergency. He lives in rented accommodation. As such, it is his position that he cannot afford the significant expenses accrued by him in pursing his application for X’s return to his care.
It is the mother’s position that she too lives in straitened financial circumstances, in rented accommodation. Her weekly rent is $550.00. She deposes that she has no assets of significant value and drives a leased motor vehicle.
The mother is currently employed, on a part time basis, as a professional at an organisation. She was diagnosed, with breast cancer, in mid-2018 and was compelled to undergo a lengthy regime of treatment, which reduced her capacity to work and was expensive, given that she did not have private health insurance.
In the most recent financial year, she earnt $39,079.00. Her current husband is employed as a public servant, also on a part time basis and earns less than she does per month.
The parties have been involved in disputation, before both the registrar of the Child Support Agency and the Administrative Appeals Tribunal regarding assessment of child support for Y and X. Currently the mother is assessed to pay a modest amount of $83.00 per month to the father for child support. However, she must pay travel expenses related to both the children visiting her in Queensland and if she comes to visit them in South Australia.
It is the mother’s view that a significant air of uncertainty surrounds the father’s true financial position, as he has not furnished tax returns for the last three years and, notwithstanding his alleged impecunious situation, is able to pay the children’s private school fees, which are significant.
In all these circumstances, she expresses herself as being ‘doubtful’ that the father is impecunious given her assessment that the rent the father she believes the father is paying is greater than his jobseeker payment and he is still able to pay school fees and provide for himself and the children’s need.[21]
[21] See Affidavit of Ms Maddin filed 12 March 2021 at [42] – [44]
Receipt of legal aid
This is not a relevant consideration, as neither party is in receipt of legal aid assistance.
Conduct of the parties
The specific sub-section directs the Court to have regard to the conduct to the parties in respect of their individual management of the proceedings. I have already made some comments in this regard. Essentially, each party views the matter from the vantage point provided by their individual perspective on the case and its implications for X and asserts that what he or she did was both entirely justifiable and reasonable.
One of the salient features of the proceedings is that different considerations pertain to Y on the one hand and X on the other. This led to the Court having to conduct two distinct interim hearings in respect of issues raised by the parties. Following the first hearing, it was directed both children be returned to the father. The mother complied with this order so far as Y was concerned but failed to produce X.
This led to the necessity for the Court to conduct a second hearing, leading to the father incurring more expense. In addition, to garner more support for her position, the mother engaged a further psychologist, Ms E, to establish that X was at risk of suffering psychological harm, if returned to her father, in breach of what were said to be her clear views.
The father’s points to effect of the first order and the fact of the mother’s obvious breach of it, leading to a second order having to be made, which again was contrary to the outcome sought by the mother and led to him incurring further costs.
The mother points to her obligations, as a parent, to ensure the protection and safety of her child. Essentially, the mother claims that she would have been derelict in the face of her obligations towards X, if she had returned the child, given what she understood of the child’s then psychological distress to which she had been directly exposed.
I accept that the mother did not capriciously or dishonestly assert that X was distressed at the prospect of being returned to her father’s care. She had support in this view from both Dr D and Ms E, albeit neither of these experts had any input from Mr Accola in formulating their opinions in respect of the risk arising for X.
The father is critical that Ms Maddin orchestrated the involvement of Dr D and Ms F in the case without any input from him and by necessary inference in order to shore up her already formulated unilateral decision to retain X in Queensland in defiance of the Court order and what she knew would be his inevitable opposition to such an outcome.
It is his further submission that it is axiomatic that the mother was being disingenuous and manipulative by engaging Ms E, after the first interim hearing, by attempting unilaterally to shore up her position in the face of the Court’s first determination.
The difficulty with this submission is that the evidence indicates that X has been exhibiting behavioural issues for some time. In addition, there is no indication that the parties had the sort of co-parenting relationship which would have enabled Ms Maddin to engage Dr D, in all the circumstances then prevailing, with Mr Accola’s consent and certainly not to obtain a second opinion.
In my view, this placed the mother in an invidious position. From her perspective, serious issues had been engaged in respect of the health, welfare and safety of X to which she felt she had to respond. I also accept that it would have been extraordinarily difficult for her to have resolved these issues through direct dialogue with the father.
In these circumstances, she was presented with a stark choice – either ignore the child’s concerns and place her in a situation which she believed would be injurious to her welfare – or retain the child to ensure her immediate safety. I can understand why Ms Maddin considered that the second option was the only one open to her if she was to direct herself to the service X’s best interests, as she then perceived them to be and this was her motivation for engaging Ms E.
The problem now confronting Ms Maddin is that ultimately the Court assessed the risk in a different way to her. However, in my view, the fact of this alone does not render her subjective decision making, in respect of the issue of X’s return, either inherently capricious or disingenuous.
Rather, Ms Maddin was confronted with a terrible dilemma. I do not think, in all the special and idiosyncratic circumstances of this case, she can be criticised for making the decision which she did, which I accept was motivated by her assessment of what would be best for X at the time.
If any criticism can be made of Ms Maddin’s actions it is that she was entirely reactive to what Mr Accola would do in respect of bringing the matter back to Court. She did not, of her own motion, bring her concerns to the Court’s attention, prior to Mr Accola’s bringing of the recovery application.
I can also understand why Mr Accola took the approach that he did, given the nature of the orders previously made. However, it cannot be said that he was unaware of the sensitivity of issues pertaining to X. Nonetheless he was not prepared to wait for any independent assessment of X’s circumstances prior to pressing for the child’s recovery, notwithstanding the fact that both Dr D and Ms E had raised significant concerns about X’s welfare.
In short, the actions of both parties ensured that it was inevitable that it would be the Court which was called upon to assess the degree of risk arising for X in the context of a truncated interim hearing and each assumed the possibility that the Court could assess the risk in a different way to how he or she had done up to this stage.
The dilemma thrown up by this case largely stems from the parties’ poor and mistrustful relationship with one another. A state of affairs which has existed for many years and to which both have contributed.
In all these circumstances, I consider it simplistic to assume merely from the result of the protracted interim proceedings that one party is to be taken to be in the right and so entitled to costs and the other is taken to be in the wrong and so should be penalised in this regard.
Whether the proceedings were necessitated by failure to comply with a previous order
The mother did not comply with the relevant order and did not apply for its suspension prior to the father bringing these proceedings. In this context, the father points to the fact that he, in contrast to the mother, did comply with his obligations under the applicable order, and did provide the children to spend time, with their mother, in the relevant school holiday period.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
These proceedings are likely to have a long way to go. Given the advice provided by Family Consultant Ms C, it is a case replete with complexities. As such the interim hearing which is the subject of this application for costs is unlikely to determine what the ultimate outcome of the case will be.
Accordingly, although the mother’s interim application for X, in particular, to live with her, in Queensland, was unsuccessful, it remains a live issue in the on-going proceedings.
Whether any party has made an offer in writing to settle the proceedings and the terms of any such offer
The first interim hearing took place on 10 June 2020 and required both X and Y to be delivered to the father, at the Suburb G Police Station, the following Saturday 13 June 2020.
Subsequently, due to logistic issues relating to the pandemic emergency which had resulted in significant fewer flights between Adelaide and Brisbane, the handover time was changed, after Mr Accola’s solicitor advised Ms Maddin’s solicitor of the relevant flights booked and when the father anticipated the children would be able to leave Brisbane with him.
In this context, the father put the mother on notice, in writing, that he would be seeking costs in respect of travelling expenses incurred by him and his costs, if the children were not delivered as directed by the order of 10 June and as subsequently changed in the light of the difficulty in obtaining flights.
Y was delivered but X was not. In the circumstances, it was close to inevitable that there would be a second round of proceedings. I anticipated that there might be issues arising in respect of the implementation of the first set of orders. For this reason liberty to apply was granted on short notice.
The parties each took advantage of this liberty and the second hearing took place expeditiously on 17 June. It resulted in an order for X to be delivered to the father at the Suburb G Police Station later that day. As such, it would seem to be the case that he elected to remain in Queensland until the outcome of the second round of proceedings.
In these circumstances, I accept that the mother, even if she had not already been so aware, was formally informed of the gravity of the situation from the father’s perspective. Again, it is undoubtedly the case that the mother considered that she was justified in doing what she did by the opinion recently obtained from Ms E.
Any other fact or circumstance
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.
I acknowledge that I, like all judicial officers, cannot be considered to be infallible. I concede any parenting decisions made by me, at the interim stage, may very well prove to be incorrect, when further evidence comes to hand. That is the essential nature of an interim hearing, it is provisional in nature and so subject to later revision, on the basis of subsequent information.[22]
[22] See Sawyer & Clancy (No 2) [2012] FMCAfam 1369 [106]-[118] (Brown FM).
It is as a consequence of the disputation between parents that the Court is called upon to make these problematic interim decisions. It cannot defer the making of these decisions until there is a perfect evidentiary time for its deliberation. Necessarily the individuals concerned will disagree about the outcome of such decisions. That is their right but does not abrogate them of their obligation to follow orders imposed upon them, notwithstanding the strong emotions precipitated by such situations.
The Full Court in the case of Marvel & Marvel (No 2) has appositely remarked as follows:
Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing.[23]
[23] [2010] FamCAFC 101 [120] (Faulks DCJ, Boland & Stevenson JJ).
Although I have great sympathy for the situation confronting Ms Maddin and do not doubt her devotion to the best interests of X, the fact is that her actions necessitated further proceedings notwithstanding the first adjudication by the Court. Following which she was put on notice by Mr Accola that costs would be in issue.
In my view, having attempted to balance the various factors arising under section 117(2) it would be just for Mr Accola to receive some award of costs. However, given the emotional quotient of this case, which raised significant issues pertaining to the welfare of a vulnerable child, these costs should be referrable only to the second hearing, necessitated by the failure to return X.
However, I do not consider that this is a situation which justifies the award of indemnity costs. In the light of Ms E’s report, albeit it was obtained unilaterally, it cannot be said that Ms Maddin’s position had no possibility of being vindicated.
In addition, her case cannot be one characterised as containing baseless allegations given the subsequent assessment of Family Consultant Ms C. Most significantly, given her subjective assessment of the degree of risk arising for X, this was a case which was, ostensibly at least, incapable of compromise.
In all the circumstances I propose to award Mr Accola a lump sum of costs fixed in a sum of $5,000.00.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 9 June 2021
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