AITKEN & PORTEUS

[2016] FCCA 2029

FEDERAL CIRCUIT COURT OF AUSTRALIA

AITKEN & PORTEUS [2016] FCCA 2029

Catchwords:
FAMILY LAW – Interim hearing in relation to parenting proposals of each party – prior parenting orders of Family Court of Australia – change in circumstances – fresh parenting orders made – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA(3), 65D, 65DAA(3), 117(2A)

Cases cited:

Banks & Banks [2015] FamCAFC 36
Cheni & Stiller(No.2) [2016] FamCA 218
Goode & Goode (2006) FLC 93-286

Hawkins & Roe [2012] FamCAFC 77

Marvel & Marvel (2010) 43 Fam LR 348

Rice & Asplund [1979] FLC 90-725

Applicant: MS AITKEN

Respondent: MR PORTEUS

File Number: PAC 2768 of 2007

Judgment of: Judge Newbrun

Hearing date: 21 July 2016

Date of Last Submission: 21 July 2016

Delivered at: Parramatta

Delivered on: 9 September 2016

REPRESENTATION

Solicitors for the Applicant: Caldwell Martin Cox Solicitors

Respondent: In person

ORDERS, PENDING FURTHER ORDER:

1. That the final consent parenting Orders made by the Family Court of Australia on 26 April 2007 be discharged.

2. That the parties have equal shared parental responsibility for major long-term decisions concerning the children X born (omitted) 2001 and Y born (omitted) 2002 (“the children”).

3. That the children live with the mother.

4. That the children spend time with the father:

   (a)each alternate weekend from 5:00pm on the Friday until 5:00pm on the Sunday (subject to Mother’s Day, Christmas Eve, Christmas Day, Boxing Day, all school holiday periods and the children’s birthdays, which are otherwise dealt with herein);

   (b)from 9:00am until 5:00pm on Father’s Day in each year;

   (c)for the first half of the school holiday periods, each year commencing at 9:00am on the day after the children finish school, and concluding at 5:00pm on the middle Saturday of the said holiday period;

   (d)for 2016, from 12:00 noon on Christmas Eve until 6:00pm on Christmas Day;

   (e)on each of the children’s birthdays in even numbered years as agreed and failing agreement, from the evening prior at 4:00pm until 5:00pm on the birthday, and similarly with the mother in odd numbered years; and

   (f)at such other times as may be agreed in writing between the parents (to include SMS or email).

5. That the children’s time with the father during school holiday periods shall be suspended from 6:00pm on Christmas Day until 5:00pm on Boxing Day in 2016.

6. That the children shall spend time with the mother on Mother’s Day from 9:00am until 5:00pm.

7. That for changeover purposes for the alternate weekends referred to above, and whilst the children are at boarding school, the father shall collect the children from school at 5:00pm on  Friday and shall return them to school at 5:00pm on Sunday (or 5:00pm on Monday if a long weekend).

8. That for changeover purposes for Father’s Day, Mother’s Day, school holidays, Christmas Eve and Christmas Day periods and the children’s birthdays, as referred to above, the mother shall, when applicable, deliver the children to the father’s home at the commencement of that time and the father, when applicable, shall return the children to the mother’s home at the conclusion of that time.

9. That neither parent shall consume alcohol in the period 6 hours prior to any occasion that they are to drive a motor vehicle with the children (or either of them) as passengers in that vehicle.

10. That the mother shall sign all documents, provide consents and do all things necessary to authorise the children’s school reports, other reports on school progress and behavioural issues, school circulars/newsletters and notices in relation to all functions, parent/teacher nights and other activities to which parents are invited, to be made available to the father.

11. That the father shall make arrangements with any school and/or sporting organisation with which the children are associated, for the purpose of obtaining copies of any reports, notices or communications regarding the children or events in which the children are to be involved and to make arrangements to purchase any school photographs at his own expense.

12. That both parents shall keep the other advised in writing of their current residential address and contact telephone number during all periods that the children are living with or spending time with them.

13. That neither parent shall denigrate the other parent in front of either or both of the children at any time.

14. That both parties shall refrain from physically molesting or verbally abusing each other, in front of either or both of the children, at any time.

15. That the mother refrain from using any firearm in the presence or vicinity of the children.

16. That the father pay the mother’s costs of 31 March 2016.

IT IS NOTED that publication of this judgment under the pseudonym Aitken & Porteus is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2768 of 2007

MS AITKEN

Applicant

And

MR PORTEUS

Respondent

REASONS FOR JUDGMENT

1. This was an interim hearing relating to the children of the parties, X, date of birth (omitted) 2001 and Y, date of birth (omitted) 2002.

2. The Applicant mother relied upon the following documents:

   a)Initiating Application filed 19 March 2015;

   b)Application in a Case filed 11 December 2015;

   c)Affidavits of the mother filed 11 December 2015 and 27 July 2016;

   d)Child Inclusive Conference Memorandum dated 15 January 2016;

   e)Child Dispute Conference Memorandum dated 14 July 2016;

   f)Case Outline filed 19 July 2016; and

   g)Submissions on costs filed 30 March 2016.

3. The Respondent father relied upon the following documents:

   a)Response filed 22 April 2016;

   b)Affidavits of the father filed 22 April 2016 and 14 July 2016; and

   c)Notice of Risk filed 22 April 2016.

4. The parties commenced cohabitation in 2000. The relationship continued until October 2005. They did not marry. Following separation in October 2005 and until April 2007, the children lived with the mother and spent time with the father on alternate weekends and otherwise as agreed.

5. Final parenting orders by consent were made in the Family Court of Australia at Parramatta on 26 April 2007. Those orders are fully set out below. Those orders provided, in particular, that the children would live with the mother, that they would spend time with the father for two (2) weekends out of every three (3) weekend cycle, from 5:00pm Friday until 5:00pm Sunday, in addition to each alternate Tuesday from the conclusion of school until Wednesday at the commencement of school, and for one half of the New South Wales school holiday periods.

6. At the time the above orders were made:

   a)X was six (6) years of age and Y was four (4) years of age;

   b)X had just started school and Y was at preschool;

   c)The children were living with the mother in a home at (omitted);

   d)The father was living at (omitted);

   e)The children had been spending time with the father every second weekend and were living with the mother for the rest of the time; and

   f)The mother was working on a part-time basis from home.

7. Following the orders of 26 April 2007, the parties implemented those orders and the children lived with the mother at all other times. She attended to their primary day-to-day supervision needs when the children were in her care.

8. In 2011, the children and the mother moved from (omitted) to their current home at (omitted). The parties agreed for the children to change primary schools from (omitted) Public School to (omitted) Public School. The children each attended that latter school until they commenced high school in 2013 (X), and 2014 (Y).

9. The mother asserts that she commenced to work full-time for her father, the maternal grandfather, but this is disputed by the father who states, “[the mother] as far as I am aware does not work.”

10. The mother asserts that since about mid-2012 the father stopped seeing the children for the Tuesday night visits each fortnight and that these visits have not occurred since then. Whilst the father states that this is untrue, in his affidavit, he nevertheless states that, “the fact is that it is not always practical to see the children on a mid-week night whilst they are at boarding school ...”

11. In 2013 X commenced high school as a full-time boarder at (omitted) School at (omitted).

12. In 2014 Y commenced high school as a full-time boarder at (omitted) School at (omitted).

13. As the children are at boarding school each week from Sunday evening until Friday after school, and sometimes until Saturday school sport, the mother no longer has the children living with her on a day-to-day basis. She is limited in the time that she can spend with them to informal school visits during the week and to one (1) weekend out of every three (3) weekends (pursuant to the Family Court of Australia Orders of April 2007).

14. As to the mother’s informal school visits during the week, her affidavit states that she takes the children to podiatry and chiropractic appointments in Sydney, with the same person, once a fortnight during the school week, and she also collects the children from school once a week to take them out to dinner (she states that on occasions the children bring a friend or friends with them to these dinners).

15. According to the mother, until about two (2) school terms ago, on the two (2) weekends out of three (3) that the children were to spend time with the father, the father required the mother to comply with order 8 of the Family Court of Australia Orders of April 2007, which effectively required the mother to travel from her home at (omitted) to collect the children from their schools at (omitted) on the Friday, and then deliver them to the father’s home at (omitted); this round trip took the mother about two (2) hours. The father would then return the children to school on the Sunday evening on his weekends. The father, for his part, asserts that for many years now he has collected and returned the children for each of his weekends with them.

16. The Court is comfortably satisfied, on the evidence presently before the Court, that there has been a relevant change in circumstances since the orders of the Family Court of Australia were made in April 2007, such that this Court should now entertain fresh parenting proceedings.

17. Again, since those orders were made, the children are no longer primarily living with the mother and are now at boarding school at (omitted), yet under the orders of the Family Court of Australia of April 2007, the mother can only spend time with the children one (1) out of every three (3) weekends in a three (3) weekend cycle.

18. Further, the father himself concedes that, in view of the children attending boarding school during school term times, it is not always practical for him to see the children each alternate Tuesday from the conclusion of school until Wednesday at the commencement of school (order 3b of the Orders of the Family Court of Australia of April 2007).

19. Further, under order 8 of the Orders of the Family Court of Australia of April 2007, the mother is required to deliver the children to the father’s place of residence at the commencement of his time with the children. In this context, when the children were living primarily with the mother at (omitted) (this suburb is close to the (omitted), adjacent to the suburbs of (omitted) and (omitted)), before they commenced boarding at high school at (omitted), the mother, pursuant to order 8, was required to deliver the children to the father’s residence at (omitted) from (omitted). Now, again pursuant to order 8, (at least legally, noting the parties are in dispute as to whether, until recently, the father insisted on compliance with order 8), she is required to travel from (omitted) to the children’s boarding school at (omitted) and backtrack to the father’s residence at (omitted) to deliver the children to him.

20. The above changes in circumstances, whether considered individually or cumulatively, represent a relevant change in circumstances such that the threshold principles in Rice & Asplund have been satisfied by the mother, entitling her to commence these fresh parenting proceedings.

21. By reference to well-established legal authorities pertaining to the above rule in Rice & Asplund, the above changes in circumstances (whether considered individually or cumulatively) justifies the serious step of permitting the mother to seek parenting orders in these fresh parenting proceedings. In the view of the Court, in the context of these relevant changes in circumstances, it is necessary and proper, in the best interests of the children, to allow such proceedings to continue. As will be discussed later in these reasons, when considering and evaluating relevant primary and additional considerations under section 60CC of the Family Law Act 1975 (Cth) (“the Act”), it will be in the best interests of the children, inter alia, to make fresh parenting orders providing for:

    a)the children to spend time with each parent on each alternative weekend when the children are at boarding school during school term times; and

    b)for changeover purposes, for the alternate weekends referred to above, that the father collect the children from their schools at 5:00pm on Friday and return them to school at 5:00pm on Sunday (or 5:00pm on Monday if a long weekend).

22. In the view of the Court, such fresh parenting orders, being in the best interests of the children, outweigh any possible detriment to the children caused by these fresh parenting proceedings.

23. Final parenting orders by consent were made in the Family Court of Australia Parramatta on 26 April 2007. Those Orders provided, inter alia, that:

    a)the parties have equal shared parental responsibility in relation to the children;

    b)the children live with the mother

    c)the father have time with the children:

    i)Two weekends out of every three weekend cycle from 5:00pm Friday until 5:00pm Sunday (extending until 5:00pm Monday in the event of a public holiday) commencing 4 May 2007; and each alternate Tuesday from the conclusion of school until Wednesday at the commencement of school;

    ii)From 28 March 2008, the father’s time with the children can increase to the commencement of school Monday morning by agreement between the parties;

    iii)for one half of each New South Wales school holiday periods as agreed, and failing agreement for the first half of the holidays;

    iv)on Christmas Eve in each year from 10:00am until 6:00pm on Christmas Day in each year, in the event the children are not already in his care;

    v)on each of the children’s birthdays in each year as agreed, and failing agreement, the evening prior at 4:00pm until 5:00pm on the birthday;

    vi)on Father’s Day in each year from 10:00am until 6:00pm; and

    vii)any other time as agreed between the parties

The Competing Proposals of the Parties

1. The mother’s proposed interim parenting orders are set out in Exhibit A (which largely reflect the fresh parenting orders that she seeks in her Initiating Application filed 19 March 2015).  

2. The father’s Response filed 22 April 2016 sought both final and interim parenting orders in the same terms as the past final consent parenting orders of the Family Court of Australia of 26 April 2007 (the father had stated in his Response that he sought “that the orders made on 26-4-07 stay in place”). The Court notes that the father, in his short affidavit filed 22 April 2016, similarly stated that he wished the orders made on 26 April 2007 to remain in place.

3. At the interim hearing the father agreed to aspects of the mother’s proposed fresh interim parenting orders set out in Exhibit A.

4. The father agreed that for changeover purposes, when he was to spend time with the children on weekends during school term times, that he would collect the children from school at 5:00pm on the Friday and return them to school at 5:00pm on Sunday (or at 5:00pm on Monday if a long weekend).

5. The father agreed to proposed order 7 in Exhibit A being:

   That, for changeover purposes for Father’s Day … and if the children are not already with the Father for that day, the Mother shall deliver the children to the Father’s home at 9:00am and the Father shall return the children to school at 5pm.

6. In relation to the mother’s proposed order 8 in Exhibit A, the father agreed that, for changeover purposes for school holidays, the mother shall deliver the children to the father’s home at the commencement of that time and the father shall return the children to the mother’s home at the conclusion of that time.

7. The father agreed to an interim order that neither parent shall consume alcohol in the period 6 hours prior to any occasion that they are to drive a motor vehicle with the children (or either of them) as passengers in that vehicle.

Aspects of certain evidence

1. The father, in paragraph 10 of his affidavit filed 14 July 2016, states that the mother’s health is “fine”. Later, in paragraph 52, he states that the mother “suffers from mental illness and though this is not a fault as such it is of concern when she has the stupidity to acquire a firearms licence.” In the father’s signed, but unsworn, Notice of Risk filed 22 April 2016, he asserts that the mother has been diagnosed with “bipolar”. The father asserts that the mother is a “hypochondriac”, which assertion is denied by the mother.

2. The mother seeks interim parenting orders that would provide for the children spending time with one or the other parent, in alternate years, in relation to the period from Christmas Eve to Christmas day. In this context, the parties are in dispute as to the mother’s past and present involvement with the (religion omitted) faith. The father states that the mother does not celebrate Christmas as she is of the (religion omitted) faith.

3. The father’s evidence, in support of his assertion that the mother presently “is a (religion omitted)”, is a disputed (religion omitted) issue for the child X back in 2001, the consent parenting order in 2007 (order 9) that the mother “is prohibited from allowing the children to attend religious canvassing or (religion omitted) with her or any body else”, and his assertion that the mother did “(religion omitted)” in secret thereafter and, “It was only after a threat of a contravention through the family court that she stopped.” The father provides no evidence as to when, on his assertion, the mother ceased “(religion omitted)”. He provides no evidence otherwise as to his assertion that the mother presently practices this faith.

4. The mother states that although she was part of this faith after separation, she ceased participating in about 2007 and has now not been to a meeting or been part of it in any way, shape or form for at least 8 years. She does not attend meetings, does not attend their social events and she does not read their publications. The mother states that it is very different now that she no longer practices the (religion omitted) faith. She states that she “enjoys celebrating Christmas with the children.”

5. The Court, at this interim hearing, is unable to resolve this factual dispute as to whether the mother is presently a practising member of the (religion omitted) faith. In relation to Christmas Eve and Christmas Day, the Court proposes to make an interim order that the children, in 2016, spend time with the father from 12:00 noon on Christmas Eve until 6:00pm on Christmas Day (noting that for 2016, this was the mother’s proposed interim order). The Court will clarify with the parties, after judgment in this interim hearing, whether they wish to seek agreement in relation to this Christmas issue for 2017 and thereafter, or whether they require a further very short hearing in relation to the issue.

1. The mother gives evidence that she enjoys celebrating the children’s birthdays with them when they are in her care. It is clear from the 2007 consent parenting orders that both parties were able to spend time with the children on their birthdays.

Legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well-settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. 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 (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

   Consideration of the s 60CC factors that are relevant

   [46] In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.

   [47] As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   [48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   [49] Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   [51] In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

   [52] In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

5. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

6. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

7. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA(3).

8. If the presumption of equal shared parental responsibility in relation to the child applies, and it is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

9. If equal time is found not to be in the child’s best interests, or impracticable as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

10. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC and 65D.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - Meaningful relationship primary consideration

1. The children have a meaningful relationship with both parents and would benefit from a continuance of those relationships.

2. The Court notes the statement by the father, accepted by the mother, that “the weekends I have spent with my kids over these years have been wonderful for myself and also for them.” The mother, in this context, further states that she works very hard behind the scenes to facilitate the children’s time with the father.

3. The Court notes that the children were primarily living with the mother before they commenced boarding school. Should the children be restricted to seeing the mother only one (1) out of three (3) weekends in a three (3) weekend cycle during school term times, then their meaningful relationship with the mother could well be detrimentally affected.

4. Should the Court now make interim parenting orders providing for the children, during school term times, to spend time with each parent on alternate weekends, and noting the parties have agreed to share equally school holidays, the children’s meaningful relationship with the father should not be detrimentally affected.

5. The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b) - Need to protect primary consideration

1. The mother, at the Child Inclusive Conference on 15 January 2016 at which the father did not attend, indicated that she does not have a concern for the children when they are in the father’s care. In relation to the mother’s allegations of family violence perpetrated against her by the father, which allegations are denied by the father, and which the Court has considered carefully, the Court notes that, in addition to the admission made by the mother to the Family Consultant at the Child Inclusive Conference that she does not have concern for the children when in the father’s care, the mother was content (and by inference remains content, by reference to the interim parenting orders that she presently seeks) to allow the children to spend regular time with the father.

2. At the Child Dispute Conference on 14 July 2016, the father reported that there were no issues or concerns of the mother being abusive or violent towards him or the children.

3. The father refers to the mother’s “history of drug usage” and, inter alia, asserts that the mother “has been a regular cocaine and heroin user in the past.” As to this allegation, the father, at the Child Dispute Conference, stated that the mother had been using heroin when they first met, although ceased soon after with his encouragement. This drug use allegation is not referred to in the father’s Notice of Risk document. In particular, he gives no evidence as to the mother being adversely affected by such drug use when the children were in her care.

4. The father alleged at the Child Dispute Conference on 14 July 2016 that the mother’s brother “is heroin user of many years and that he still lives in the maternal Aitken family home which [the children] visit on a frequent basis when seeing the extended maternal family.” In his affidavit filed 14 July 2016, the father alleges, at paragraph 27, that:

   [The mother] comes from a family that has had a heroin addict living in the family home for at least 17 years … [The mother] has on numerous occasions left the kids in this persons care, even though I have told her not to do so again and again.

   These allegations are not referred to in the father’s Notice of Risk document. The mother, in her affidavit filed 27 July 2016, expressly denies leaving the children in her brother’s care at any time at all during their lives.

5. The father also asserts that the mother told him that “her drug usage” led to the child X being born prematurely. The mother, in response, at paragraph 63 of her affidavit filed 27 July 2016, “absolutely” denies “the accusation in paragraph 28 about [her] alleged drug use being linked to X being born prematurely.”

6. At the Child Dispute Conference, the father, inter alia, reported that he had serious concerns regarding the mother obtaining a firearms licence and was of the view that this was a risk to the children. The mother told the Family Consultant at the Child Dispute Conference held on 14 July 2016 that she obtained the firearms licence “six months ago” for use when she stays on a farm at (omitted). In this context, the Court notes that it was the mother who commenced these proceedings on 19 March 2015 and that the first time the father raised the firearms licence issue was when he filed his Notice of Risk on 22 April 2016.

7. In his affidavit, the father asserts that the mother has certain negative qualities, including certain negative personality issues, and asserts that the mother suffers from bipolar disorder. These assertions are specifically denied by the mother in paragraph 61 of her affidavit filed 27 July 2016.

8. Noting the father’s above concerns in relation to the mother, it is relevant in this context that the children had been primarily living with the mother since the Orders of the Family Court of Australia in April 2007 up until the time that they respectively commenced boarding school in 2013 and 2014; the father had not taken any fresh proceedings, or otherwise taken any other relevant steps, in relation to the April 2007 Orders, during that six (6) to seven (7) year period.

9. Further, the Court should note that the father’s affidavit filed 14 July 2016, in particular at paragraphs 39 and 40, would appear to indicate a preparedness on his part for the children to spend time with each parent on alternate weekends, at least during school term times.

10. As to the mother’s proposed interim order 4(a) in Exhibit A, inter alia, that the children spend time with the father each alternate weekend from 5:00pm on the Friday until 5:00pm on the Sunday, the Court notes the father’s evidence at paragraphs 39 and 40 of his affidavit filed 14 July 2016, stating that:

    [39]. [The mother] states that ‘on each occasion’ I have offered to enter into an agreement to allow [the mother] to see the children on alternate weeks, which is essentially what she is asking for.

    [40]. I have offered to share the custody of our children on a basis of one week with mum and one week with dad. I have done this because that is what my children have told me they want. [But please be aware that they only have stated this because they feel guilty that I have more time with them than their mother. (The mother) uses guilt as a tool to try to influence (the children’s) decisions quite regularly]. This would effect a 50-50 shared care custody. Allowing for [the mother] to have the same amount of face to face time through the week with the kids that she is chasing in this case.

11. The Court notes the father’s response in his affidavit filed 14 July 2016 to the following paragraph 25 of the mother in her affidavit filed 11 December 2015:

    [25]. I have spoken to [the father] and requested that we change the arrangements so that the children spend time with him each alternate weekend, for half of the holidays and on other special occasions. On each occasion he has said, “I’ll agree but you have to sign an agreement to say custody is 50/50.”

12. The father’s response to paragraph 25 above, in his affidavit filed 14 July 2016 was, inter alia:

    [The mother] states that ‘on each occasion’ I have offered to enter into an agreement to allow [the mother] to see the children on alternate weeks, which is essentially what she is asking for… I have offered to share the custody of our children on a basis of one week with mum and one week with dad… [The mother’s] statement proves that I have from the very start been willing to compromise and negotiate in this case.

13. Subject to the discussion immediately below relating to the mother’s allegations against the father (disputed by the father) that he continues to verbally and physically abuse her, in the presence of the children, the Court is of the view, at this interim stage, noting the above discussion under this “need to protect” primary consideration of the parties’ allegations against the other, that there is no unacceptable risk to the children of being exposed to family violence when spending regular time with the mother or the father. Similarly, the Court is of the view, at this interim stage, that there is no need to protect the children “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” from spending regular time with the mother or the father. The Court has considered each of the allegations made by the parties against each other, discussed above, and has formed the view that there is no such unacceptable risk or need to protect the children when spending regular time with the mother or the father, again, subject to the discussion immediately below.

14. The Court refers to the mother’s allegations against the father that he continues to verbally and physically abuse her in the presence of the children (again, which is disputed by the father, and noting the discussion above under this “need to protect” consideration). Taking a cautious approach at this interim hearing, the Court proposes to make an interim order that both parties refrain from physically molesting or verbally abusing each other in the presence of either or both of the children.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. At the Child Inclusive Conference on 15 January 2016, each child spoke with the Family Consultant.

2. The child X told the Family Consultant that she now thinks that spending equal time with each parent would suit her, having previously told both parents that she would like to continue spending two (2) weekends out of three (3) with the father. X told the Family Consultant that the current arrangement is “a bit uneven.” She indicated to the Family Consultant that she very much enjoys spending time with both parents.

3. The child Y told the Family Consultant that he thought that an equal time arrangement would be best because then “no-one will owe anyone any money.” When the Family Consultant suggested to him that changing the current arrangements may not stop his parents fighting, the child said that the arrangements could remain as they are. The Family Consultant noted that:

   He [Y] surmised that if the arrangements remain in place, with two weekends with his father and one weekend with his mother, he could choose an “in weekend” at boarding school on one of his father’s weekends, and that would make it “fair”.

   The child said that he is quite happy spending time with his parents during the weekend.

4. In the father’s affidavit filed 14 July 2016, he states, at paragraph 40:

   I have offered to share the custody of our children on a basis of one week with mum and one week with dad. I have done this because that is what my children have told me they want. [But please be aware that they only have stated this because they feel guilty that I have more time with them than their mother. (The mother) uses guilt as a tool to try to influence (the children’s) decisions quite regularly].

5. Apart from the father’s assertions in paragraph 40 above, there is no evidence before the Court at this interim hearing that the mother has been influencing the children’s views through the use of “guilt” or otherwise, and the father’s allegations in this respect are very general and lack particularity.

6. In the father’s affidavit filed 14 July 2016, at paragraph 10, the father states that, “[the children] are pretty well young adults and so, are at the age that they can decide who they want to stay with and how often.”

7. The Court gives significant weight to the views of the children at this interim hearing.

(b) Nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to the above meaningful relationship primary consideration.

2. In the mother’s last affidavit she refers to her relationship for almost 6 years with Mr D, stating that the children like and care for him. The father, for his part, refers to his relationship with “a lovely woman”, being in a “committed relationship”, and notes that his new partner is considerate of the father’s care priorities given to the children.

3. The mother, in her last affidavit, refers to the maternal grandfather having a close relationship with the children.

(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Each parent has so taken such opportunities in relation to the children.

2. There have been disagreements between the parties as to aspects of the children’s health treatment, including diagnoses. The Court notes that the father, at the Child Dispute Conference on 14 July 2016, did not consider that a reduction in the children’s time with the mother was necessary to ensure their well-being. At this conference the father reported that the children were healthy children with no medical needs or issues.

3(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The mother asserts that the father has been assessed as liable to pay child support of $852 per year at present. She states that he is in arrears by $774. The father does not expressly deny these assertions, although he does, for example, in his affidavit, state that he has taken the children on many holidays. He also asserts that the mother previously has obtained social security benefits improperly, which is denied by the mother. In the mother’s affidavit filed 27 Jul 2016 she states, inter alia, that the father did not ever comply with a 2009 Court Order to pay the mother $48,000 by way of lump sum child support. The father, for his part, implicitly disputes this assertion by stating that the Federal Magistrates Court ordered him to pay lump sum child support to the mother “resulting in me losing my home.” The father, in this context, further states that the mother spent the money he gave her as a result of this Court Order on various items, which allegation the mother disputes.

2. The parties are in dispute, at this interim hearing, as to the need for the child X to obtain certain treatment for what the mother contends is, for example, her dyslexia, and “special needs”. The mother contends that she has caused monies to be spent for health treatment and special needs of this child, again, which alleged needs the father disputes.

3. The mother has been obtaining financial assistance from her parents relating to the children’s upbringing.

3(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The court refers to the “meaningful relationship” primary consideration discussed above.

3(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. As discussed previously, in light of the children now attending boarding school at (omitted), order 8 of the April 2007 Orders are no longer appropriate; order 8 now requires the mother to conduct a very long drive from her residence to the school, and from the school to the father’s residence at (omitted). Generally speaking however, there is no such practical difficulty and expense of the children spending regular time with each parent.

3(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. The Court is satisfied that the parties have such capacities, subject to its discussion above under the “need to protect” primary consideration.

2. In the father’s affidavit filed 14July 2016, he is quite critical of the mother; for example, he asserts:

   a)that the mother has bipolar disorder and has compulsive behaviours (no particularity, and no supportive medical or other evidence is provided by the father);

   b)that the mother remains a member of the (religion omitted) faith (the mother asserts that for many years now she has not practiced this faith);

   c)that the mother does not work in paid employment (the mother asserts that she remains in her father’s full-time employment); and

   d)that the mother has caused the children to be treated for various health conditions which he disputes (for example, dyslexia, scoliosis, and ankle problems).

3. Again, despite this raft of criticisms levelled against the mother, the father has informed the Family Consultant on 14 July 2016 that “both [children] were healthy with no medical needs or issues”; he states at paragraph 51 to his affidavit filed 14 July 2016,that he is “pleased to see the great kids [the children] have turned out to be …” and, he has not sought to formally reduce the children’s time with the mother since the April 2007 consent parenting orders to date. In his affidavit filed 14 July 2016, the father states that the mothers “health is fine.” Finally, the fathers Response merely seeks an order that the April 2007 Orders (providing, inter alia, that the children live with the mother, and spend one (1) out of every three (3) weekends in a three (3) weekend cycle with her) continue on foot.

4. The Court also refers to the father’s allegations made against the mother and discussed above under the “need to protect” primary consideration.

5. In the mother’s affidavit filed 27 July 2016, the mother also refers to her past full-time employment in various roles, including for her father as a (occupation omitted) in his (omitted) company, her past work as a (occupation omitted) in (country omitted), her university studies in (courses omitted), her volunteer work at an (employer omitted) and her work in other roles.

6. The mother’s affidavit filed 11 December 2015 is replete with factual information indicating that she is attentive to the children’s needs. Inter-alia, she refers to all of the day-to-day needs of each of the children that are not catered for by their schools, being met by her during the week.

3(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The Court refers to its discussions above under the “need to protect” primary consideration and under the additional consideration subsection 60CC(3)(f).

2. The Court refers to its discussion above as to the positive qualities of the children, such qualities stated by the father in his affidavit and reported to the Family Consultant. In the Child Dispute Conference Memorandum dated 14 July 2016 the father reported that neither children had any emotional or behavioural issues and described them as good teenagers.

3(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. Subject to this Court’s discussion above under the “need to protect” primary consideration and its discussions in relation to the various disputed allegations between the parties within the context of the additional considerations under section 60CC of the Act, on the evidence before the Court at this interim hearing, it would appear that both parents’ attitude to the children, and to their responsibilities of parenthood have been positive.

3(j) Any family violence involving the child or a member of the child’s family.

1. The Court refers to its discussion above under the “need to protect” primary consideration.

2. In the Child Dispute Conference Memorandum dated 14 July 2016, in which the father participated, he denied any family violence in his relationship with the mother. He reported that there were arguments on occasion but denied any verbal, physical or psychological abuse.

3. In the Child Inclusive Conference Memorandum dated 15 January 2016, and in her recent affidavit, the mother asserts historical family violence perpetrated against her by the father during the former relationship. She asserted that the father was an aggressive and violent man who has mellowed over time. She asserted that the father was verbally abusive and intimidating nowadays, rather than physically violent. She stated that she is no longer fearful of the father and accepts that he will yell and scream at her from time to time.

4. The mother told the Family Consultant at the Child Inclusive Conference that after she commenced these proceedings, the father had “tried to get to her through the passenger window of her car and was yelling and screaming at her. [The mother] said that X was present and became quite distressed.”

5. The mother, in her last affidavit, annexes certain alleged text messages passing between the parties “in September last year.” The copies of the text messages are not fully dated or at all, however they do appear to refer to the father swearing at the mother.

6. The Court is unable to resolve these factual disputes at this interim hearing, but again, taking a cautious approach, the Court proposes to make an interim order that both parties refrain from physically molesting or verbally abusing each other in the presence of either or both of the children.

3(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. The father informed the Family Consultant at the Child Dispute Conference on 14 July 2016 that he had successfully defended two (2) ADVO applications brought by the mother. Again, the Court notes that the father, at the Child Dispute Conference on 14 July 2016 denied any family violence in his relationship with the mother.

2. The mother, in the Child Inclusive Conference Memorandum dated 15 January 2016 stated that the police took out an AVO against the father post-separation, but that she did not give evidence because the father promised that he would change. This is also referred to in the mother’s last affidavit.

3. The mother, in her last affidavit, states that although there were many occasions of historical family violence by the father against her, she only sought an AVO on one (1) occasion, in relation to an allegation of the father spitting at her. She finally states that she did not give evidence at court and the final AVO was not granted.

3(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. This is an interim hearing. Whilst the father’s formal position at the interim hearing was to have this Court make parenting orders in terms of the April 2007 Orders, his affidavit filed 14 July 2016 would appear to indicate that he has previously contemplated, in his discussions with the mother, inter alia, that the children spend alternate weekends with each parent, during school term times.

3(m) Any other fact or circumstance that the court thinks is relevant

1. The father’s affidavit filed 14 July 2016, again, is highly critical of the mother. There is no evidence before the Court that the father is directly relaying his views of the mother to the children. Taking a cautious approach at this interim hearing, it would be in the children’s best interests that an interim order be made that neither parent denigrate the other parent in front of either or both of the children.

2. The Court notes the father’s assertion that the Court should “take [the mother’s] firearms licence,” referred to in his Notice of Risk filed 22 April 2016, and his assertion in his affidavit that “[the mother] suffers from mental illness and though this is not a fault as such it is of concern when she has the stupidity to acquire a firearms licence”.  The court notes again the mother’s denials, inter-alia, that she is “delusional”, a “hypochondriac”, or “suffering from bipolar disorder”, together with the Court’s discussion above under this “need to protect” primary consideration.

3. The Court is of the view that there is a real risk that this issue of the mother’s extant firearms licence (and noting the mother’s statement to the Child Dispute Conference Family Consultant that she is apparently using a firearm on a (omitted) farm), which is obviously a concern to the father, may well lead to increased conflict between the parties with potential adverse effects to the children. Addressing this risk and taking a cautious approach at this interim hearing, the Court proposes to make an interim order that the mother refrain from using any firearm in the presence or vicinity of the children.

Parental responsibility

1. By reference to the mother’s interim parenting proposals, Exhibit A, and the father’s proposal that the April 2007 Orders remain in place, it is clear that both parties seek an interim order for equal shared parental responsibility relating to major long-term issues in relation to the children.

2. Neither party seeks an equal time shared parenting order. Noting that the children, during school term times, are at boarding school, such an order would not be in their best interests, nor reasonably practicable.

3. Similarly, in view of the children’s boarding school arrangement, orders for substantial and significant time, as defined under the Act, would not be in the children’s best interests, nor reasonably practicable.

4. Evaluating the above discussed primary and additional considerations under section 60CC of the Act, at this interim hearing, the Court is of the view that it is in the children’s best interests to make interim orders that:

   a)the final consent parenting Orders made by the Family Court of Australia on pre-6 April 2007 be discharged;

   b)the parties have equal shared parental responsibility for major long-term decisions concerning the children;

   c)the children live with the mother. (In this context, the Court notes that, for practical purposes, whilst the children remain at boarding school, by these interim orders, inter alia, they will spend alternate weekends with each parent and spend half of each school holidays with them. However, should for any reason the boarding school arrangement change, and noting that historically the children primarily lived with the mother, the Court regards such a “live with” order as being in the children’s best interests; in these circumstances, inter alia, the children’s meaningful relationship with the father would likely not be detrimentally affected, noting the Court’s proposed “time with” orders below relating to the children’s time with him);

   d)the children spend time with the father:

   i)each alternate weekend from 5:00pm on the Friday until 5:00pm on the Sunday (subject to Mother’s Day, Christmas Eve, Christmas Day, Boxing Day, all school holiday periods and the children’s birthdays, which are otherwise dealt with herein);

   ii)from 9:00am until 5:00pm on Father’s Day in each year;

   iii)for the first half of the school holiday periods, each year commencing at 9:00am on the day after the children finish school, and concluding at 5:00pm on the middle Saturday of the said holiday period;

   iv)for 2016, from 12:00 noon on Christmas Eve until 6:00pm on Christmas Day;

   v)on each of the children’s birthdays in even numbered years as agreed and failing agreement, from the evening prior at 4:00pm until 5:00pm on the birthday, and similarly with the mother in odd numbered years; and

   vi)at such other times as may be agreed in writing between the parents (to include SMS or email).

   e)That the children’s time with the father during school holiday periods shall be suspended from 6:00pm on Christmas Day until 5:00pm on Boxing Day in 2016.

   f)The children shall spend time with the mother on Mother’s Day from 9:00am until 5:00pm.

   g)For changeover purposes for the alternate weekends referred to above, and whilst the children are at boarding school, the father shall collect the children from school at 5:00pm on  Friday and shall return them to school at 5:00pm on Sunday (or 5:00pm on Monday if a long weekend).

   h)For changeover purposes for Father’s Day, Mother’s Day, school holidays, Christmas Eve and Christmas Day periods and the children’s birthdays, as referred to above, the mother shall, when applicable, deliver the children to the father’s home at the commencement of that time and the father, when applicable, shall return the children to the mother’s home at the conclusion of that time.

   i)Neither parent shall consume alcohol in the period 6 hours prior to any occasion that they are to drive a motor vehicle with the children (or either of them) as passengers in that vehicle

   j)The mother shall sign all documents, provide consents and do all things necessary to authorise the children’s school reports, other reports on school progress and behavioural issues, school circulars/newsletters and notices in relation to all functions, parent/teacher nights and other activities to which parents are invited, to be made available to the father.

   k)The father shall make arrangements with any school and/or sporting organisation with which the children are associated, for the purpose of obtaining copies of any reports, notices or communications regarding the children or events in which the children are to be involved and to make arrangements to purchase any school photographs at his own expense.

   l)Both parents shall keep the other advised in writing of their current residential address and contact telephone number during all periods that the children living with or spending time with them.

   m)Neither parent shall denigrate the other parent in front of either or both of the children at any time.

   n)Both parties shall refrain from physically molesting or verbally abusing each other, whether in the presence of the children or otherwise.

   o)The mother shall refrain from using any firearm in the presence or vicinity of the children.  

Costs application by the mother

1. The mother seeks an order for an indemnity costs relating to the present proceedings.

2. The Court refers to relevant legal principles in relation to the determination of costs applications under the Act. The Court refers to Foster J in Cheni & Stiller(No.2) [2016] FamCA 218, wherein Foster J stated:

   [3] Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.

   [4] That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.

   [5] Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144CLR 311.

   [6] The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section as follows:

   a) The financial circumstances of each of the parties to the proceedings;

   b) Whether any party has legal aid and the terms of any grant of aid;

   c) The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;

   d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   g) Such other matters as the Court considers relevant.

1. The Full Court in Hawkins & Roe [2012] FamCAFC 77 said:

   [17]. With respect to the application of the section, in Penfold and Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case".

   Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.

   (footnotes omitted)

   [18]. The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:

   … A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

2. The Court refers to section 117 of the Act in relation to the present costs application. The Court will now consider relevant considerations set out in subsection 117(2A).

(a) The financial circumstances of each of the parties to the proceedings

1. The father is self-employed and owns a (omitted) business known as “(omitted)”. He asserts that he does not work full-time. Again, the mother has asserted that the father has been assessed as liable to pay child support of $852 per year, and is in arrears by $774.

2. The mother asserts that she works in full-time paid employment for her father. The father does not believe this is the case. In paragraphs 66 and 71 of the mothers affidavit filed 27 July 2016, the mother particularises her employment with her father in some detail.

(b) Whether any party has legal aid and the terms of any grant of aid

1. Neither party receives legal aid for these proceedings

(c) The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters

1. The mother commenced these parenting proceedings in the Family Court of Australia at Parramatta on 19 March 2015. She had difficulties effecting personal service of process upon the father. There were two (2) mentions of the proceedings before Registrars of the Family Court.

2. On 16 June 2015, the mother’s proceedings were transferred to this Court.

3. On 25 July 2015 personal service of the mother’s court documents was effected upon the father. Through the letter from the mother’s solicitors dated 16 June 2015 to the father, he was informed of the next mention date of the mother’s proceedings on 7 August 2015.

4. On 7 August 2015, the mother’s proceedings were mentioned before this Court. Both parties appeared. The proceedings were adjourned to 14 December 2015. The father provided an address for service as “(omitted)”. The father was directed to file and serve his documents within 8 weeks. A Child Inclusive Conference was appointed for 15 January 2016 (the father did not attend this conference).

5. On 14 December 2015 the mother appeared before the Court but the father did not appear. The father had not filed and served his documents. The proceedings were listed for an undefended hearing on 31 March 2016. The Court noted, at the instance of the mother, that she would make a costs application against the father on 31 March 2016.

6. On 18 December 2015, the mother’s solicitors wrote to the father informing him of the Court’s Orders of 14 December 2015.

7. On 31 March 2016 both parties appeared. The father claimed that he was ill on 14 December 2015, but he provided no medical evidence in support of such contention, and the Court does not accept this illness assertion. The Court ordered that the father file and serve his documents within 21 days (he ultimately filed his substantive affidavit on 14 July 2016). The Court appointed an interim hearing for 21 July 2016. Each party was directed to file and serve, at least seven (7) days before the interim hearing, a short Case Outline setting out certain matters; the mother complied with this direction but the father did not file and serve any Case Outline.

8. On 22 April 2016 the father filed an affidavit merely stating that he sought that the Orders of the Family Court of Australia of 26 April 2007 remain in place. On this date he also filed a Notice of Risk, signed by him, stating, inter alia, that the mother had mental ill health, had been diagnosed with bipolar, and was in possession of a Firearms Licence.

9. On 24 June 2016 the proceedings, at the instance of the Court, were mentioned in relation to release of the Child Inclusive Conference Memorandum of the Family Consultant, and directions were made in relation to that Memorandum. Both parties appeared.

10. On 21 July 2016 the interim hearing was held. Both parties appeared. The mother appeared through her solicitor. The father was legally unrepresented. The father relied, inter alia, upon his affidavit filed 14 July 2016. At the conclusion of oral submissions of the parties, the mother was directed to file and serve an affidavit, in response to the father’s aforesaid affidavit, contesting any relevant factual assertion, by 26 July 2016.

(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court

1. The Court notes that the mother was required to obtain an order for substituted service of her documents upon the father, that her proceedings were transferred from the Family Court of Australia to this Court on 16 June 2015, and that she finally effected personal service of documents upon the father on 25 July 2015.

2. The proceedings before the Court on 31 March 2016, scheduled for an undefended hearing, were effectively wasted. On that date the mother came, legally represented, prepared for an undefended hearing. The father appeared on that day, requesting an adjournment to put on his evidence, which adjournment request was granted by the Court.

3. When one considers closely the history of the mother’s proceedings, including in the Family Court of Australia, the orders and directions made at each mention of the matter, it is not readily apparent that there is substance to the mother’s submission that a significant number of court appearances were rendered wasteful by reason of the father’s conduct.

(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. Neither party has been wholly unsuccessful in the proceedings.

2. The Court notes that there have been slight changes in the orders sought by the mother from time-to-time, when one considers closely her orders sought in her Initiating Application filed 19 March 2015, her Application in a Case filed 11 December 2015, and her final orders sought in Annexure A.

(f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

1. The solicitors for the mother wrote to the father on 22 April 2014 putting forward parenting proposals, which in substance were quite similar to the orders sought in her Initiating Application filed 29 March 2015.

2. This proposal by the mother to the father, as set out in Annexure B to the mother’s affidavit filed 11 December 2015, was stated in the following terms, “The proposal set out above is not a demand being made by our client but is simply a request put forward for your consideration and response.” There was no express written warning given by the mother’s solicitors to the father that legal proceedings would be commenced if he did not respond.

3. The Court is of the view, pursuant to section 117 of the Act, having considered the relevant factors, as discussed above, under section 117(2A), that there are circumstances that justify the Court in making an order as to costs in relation to the proceedings before the Court on 31 March 2016; had the father appeared before the Court on 14 December 2015, and been in a position, as previously directed by the Court, to advise the Court that his evidence was complete, it is likely that the Court, on 14 December 2015, would have appointed an interim hearing fixture, and thereby rendered unnecessary the appointment of the undefended hearing fixture of 31 March 2016.

4. A costs order will be made that the father pay the mother’s costs of 31 March 2016. The Court is not satisfied, in the circumstances, that the additional costs that the mother seeks, pursuant to section 117 of the Act, should be made the subject of an order of the Court against the father.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:       9 September 2016