ALEXIE & THANOU

[2017] FamCA 1183

FAMILY COURT OF AUSTRALIA

ALEXIE & THANOU [2017] FamCA 1183

FAMILY LAW – CHILDREN – International relocation – Parental responsibility – Where the mother seeks to relocate to the United Kingdom with the two children, age 15 and 17 – Where the children wish to relocate to the United Kingdom – Where the children have not spent time with the father for several years – Where it is considered that the best interests of the children are met by allowing the relocation – Where the mother is granted sole parental responsibility.

Family Law Act 1975 (Cth)

APPLICANT: Ms Alexie

RESPONDENT: Mr Thanou

FILE NUMBER: MLC 6842 of 2007

DATE DELIVERED: 12 October 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Forrest J

HEARING DATE: 12 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barton

SOLICITOR FOR THE APPLICANT: Portfolio Law

THE RESPONDENT: No Appearance

Orders

1. That all existing parenting orders are discharged.

2. That the mother have sole parental responsibility for the children C, born … 2000, and D, born … 2002.

3. That the said children, C and D, live with the mother.

4. That the mother be permitted to relocate the said children, C and D, to live with her in the United Kingdom as soon as she is able to make arrangements to be able to do so.

5. That the said children, C and D, be permitted to travel outside the Commonwealth of Australia for the purposes of relocating to lie with their mother in the United Kingdom as soon as that can be arranged.

6. Notwithstanding the fact that the mother has sole parental responsibility for the said children, so as to be absolutely clear, the father’s signature is not required for the issue of passports, visas or other similar travel documents that the mother seeks to obtain for the two children, or either of them.

7. That the children shall communicate with the father by telephone, email and/or internet video conferencing such as through the platform Skype as and when they choose and in accordance with their wishes. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Alexie & Thanou has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)..

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6842 of 2007

MS ALEXIE

Applicant

And

MR THANOU

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Now before me for immediate determination are what can probably be truly described as contested parenting orders proceedings between the applicant mother, Ms Alexie and the respondent father, Mr Thanou.

2. The applicant and the respondent are the parents of two young women, C, who was born in 2000 and who has recently turned 17, and D, who was born in 2002 and who has recently turned 15, hence, although they are both not yet quite adults, my description of them as young women. 

3. I preface all of the reasons I am about to give by remarking that, in my seven years as a judge of this Court, I do not recall ever having been asked to determine contested parenting orders proceedings between parents in relation to children, technically described as children because they have not reached the age of majority, as old as these two.  It will come as no surprise to anyone reading these reasons that, ultimately, the Court has placed significant weight upon the views expressed by these two young women as to their desires in respect of the outcome of these disputed issues between their parents.

4. The mother and the father were married to each other.  They married in 1999 and separated some seven years later in 2006.  In 2007, they agreed to orders being made with their consent out of this Court or the Federal Magistrates Court (as it would have still been known then) that provided for the parenting arrangements in respect of the two girls who were still relatively young at that stage.  Those arrangements provided for the girls to live with their mother and to spend time with their father each alternate weekend, but only from 3.00 pm on Saturday until 6.00 pm on Sunday and then each Thursday, but only from after school until 6.30 pm that night.  So, relatively speaking, those orders provided for the girls to only spend a short amount of time on a regular basis with their father.  Not unusually, the orders also provided for the parents to have shared parental responsibility for the two girls. 

5. The mother says, and I have no reason to doubt the truth of it, that there were many occasions when the father was late in picking up the girls for their time with him. There were times when he would bring them back early and, notwithstanding the relatively short amount of time that the arrangements provided for the girls to spend with him, there were many occasions when he just simply did not turn up to pick them up. 

6. Indeed, I read in the mother’s material, of an occasion when the father had a scheduled period of time with the children and the mother had the children ready to be picked up by the father to spend that time with him, and he just did not turn up without any notice that he was not coming, without any explanation as to why he had not turned up, where after the mother and the girls began to worry about him, only to be ultimately notified at 1.35 in the morning by his current partner that he had simply decided to continue a camping trip that he had gone on earlier in the week and not to return to pick up the children.

7. Relevant to my determination in these proceedings today is also the evidence that the mother gives that conflict between the parents, particularly relating to the father’s use and abuse of illicit drugs, namely marijuana and the more serious drug of methyl amphetamine (“ice”), was principally the cause of the breakdown of their relationship, the father being abusive and quarrelsome and aggressive to the mother and the girls on a fairly regular basis, ultimately leading to the mother terminating the relationship with him and taking the girls with her to a place of peace and safety.  Nevertheless, she did her best, as I can see, to continue to facilitate relationships between the two girls, as they grew, and their father.

8. Parenting is not the easiest job on the planet. As most parents of young adult children will, I expect, only too readily recount, particularly, if I dare say so, in respect of the parenting of female children, it can often be the case that, as they move from that young pre-pubescent “parents-can-never-do-anything-wrong” phase to the post-pubescent teenage, young adolescent “parents-can-never-do anything-right” phase, it becomes very hard.  Parents who have had children go through that phase would also readily recognise that the relationship you maintain with that other human being, as they grow into adulthood, so often is completely dependent upon the work you put in in assisting them, tolerating their difficulties, compromising with them, and understanding what they are going through, as they are going through that important stage of developing the independence that parents desire their children to develop as they grow into healthy adulthood.

9. If, on the other hand, as a parent, you take a non-compromising inflexible, intolerant approach to the parenting of children as they go through that phase, it can lead to, regrettably, a breakdown in the quality of the relationship that you have with those children.

10. It goes without saying that when you only see your children for a very short period of time every second weekend, that the process of parenting them, relating to them, and maintaining that compromising and flexible understanding to their changing needs becomes even harder.  If your own personality has such vulnerabilities that lead you to dependence upon and abuse of illicit substances that do not do you a lot of good, then it can, indeed, make the ability to maintain and foster that meaningful relationship with your children that they so desperately need, and that you so desperately crave, even harder.

11. The evidence that I have read that I put the most weight on this case is the report of the family consultant, who interviewed the family and the children earlier this year. In particular, it appears from the references to the report writer’s conversations with these two young women and the views that she so carefully and thoughtfully elicited from them in that interview, that notwithstanding his obvious love for these girls and his desire to have an ongoing meaningful relationship with them as they grow into adulthood, the father was hampered in his ability to do this by some of his own lack of insight and some of his own personality constraints.

12. It seems that his relationship with his two girls deteriorated as they grew through puberty and into young adolescence and continued to deteriorate to an extent where, some three years ago, in 2014, when they were 14 and 12 years of age, things got so bad that one weekend when the girls came home from spending some time with him, they made it absolutely clear to their mother that they did not want to go and see him or their grandmother on their father’s side again.

13. It seems from what I have read that even their grandmother was causing them grief by siding with their father and making derogatory comments and hurtful comments about their mother to them in such a way that the girls lost faith in the emotional support that they were getting from their father and his mother, and chose, as often does happen, to take a self-protective position by saying that they did not want to go and visit him again.

14. Although that apparently disappointed their father to the extent that he was sending messages to the oldest of the two girls, C, blaming her for this breakdown in the relationship and, in particular, for the breakdown in the relationship between him and the younger sister, I am satisfied that the father took no formal steps, such as those that are available to him by coming to the Federal Circuit Court or the Family Court seeking orders for enforcement of the existing 2007 orders or orders for some other form of parenting arrangements to be put in place.  There is no evidence to suggest that he even took any steps to seek out family dispute resolution counselling or the assistance of any third parties in trying to organise some sort of rapprochement with his two teenage girls.

15. There is also evidence that I have seen that C suffered emotionally to such an extent that her schoolwork suffered.  The school she was attending observed the emotional impact that these circumstances were having upon her and it was necessary for her to undertake some psychological counselling, which her mother no doubt facilitated for her.

16. There is a report before me that was written by the practice manager of the psychology practice that the child was attending at the time.  Although the particular psychologist she was seeing was no longer working for that practice, the head of the practice had written it from her notes.  Clearly, the child, who was 14 at the time, was telling her that the greatest cause of her distress and emotional turmoil at the time was the problems that she was experiencing or had experienced with her father, and in particular, his apparent attribution of blame to her for the breakdown of his relationship with her and, importantly, her younger sister.

17. The case took an interesting turn in 2015.  I will just add, over the years, notwithstanding the difficulties that obviously have existed between the mother and the father, the mother has travelled internationally with the two girls.  From the evidence I saw, she has travelled with the girls and, on occasion, with her mother, to the United States.  I think I saw at least three, four times that they have travelled together as a group to the United States, apparently drawn there by the girls’ love for Disneyland, at least in the large part.

18. Clearly, the father was aware that the mother and the girls were travelling to the United States.  Plainly, I can infer that he gave his consent to those visits to the United States each time they decided to go.  At least he took no steps to prevent them from travelling, and had, at some stage, given permission for the girls to have passports that enabled them to travel.

19. The mother has, post-separation from the father, worked hard, no doubt out of necessity to financially support herself and her two growing daughters.  That necessity was made even more significant and pressing in the absence of any financial support for the girls from their father.  In that respect, I am conscious of the evidence that suggests that the father is in arrears in respect of child support owed to the Australian Child Support Agency in a sum of around $17,000.

20. So, by necessity, the mother has, to her credit, gone and worked hard to be able to support herself and the girls, as is often the case when the other parent will not contribute to the financial support of those children.  In around 2015, the mother was able to obtain employment in her area of employment in a much more lucrative position, income-wise, than she was earning here in Australia, over in the United Kingdom.  So, she and the girls travelled to the United Kingdom.

21. The mother was able to obtain UK citizenship by ancestry or descent.  Her mother before her being a UK citizen.  But the girls, both Australian citizens, had to obtain and travel on visas, and only stay in the UK on visas that permitted them to stay for a minimum period of time.  The mother went with the girls to the UK in 2015.  The father complains in his affidavit of the fact that they went, this time, overseas to the UK without his permission.  He points to the fact that in 2007 the orders that were made by consent were for the parents to have shared parental responsibility, and complains that he was not consulted about the decision for them to go to the UK.

22. The fact that he was not consulted can readily be explained and, perhaps, understood, if not excused completely, by reference to the fact that from 2014 to 2015 he had not spent any time at all with the girls, and that they did not want to see him, and he had taken no steps to pursue any form of relationship with them.  In any event, the mother and the two girls were able to travel to the UK and establish a life there, including the girls going to school and becoming members of their local community, forming friendships that they apparently value and cherish.  From the evidence that I have seen and accept, they were developing a seemingly healthy sense of emotional stability and working towards a happier transition into adulthood than they seemingly were expecting here in Melbourne, still exposed, somewhat, to the difficulties in their relationship with their father.

23. Nevertheless, in 2016, with their legal right to stay in the UK expiring, the girls had to come back to Australia.  The mother and the girls came back to Australia with a view to seeking out and obtaining the father’s permission for them to go back to live in the UK, as they were not able to obtain the right to go back to live in the UK without getting his permission, it seems.  For reasons known only to him, and no doubt connected with his disappointment and distress about the loss of his relationship with his two young adult daughters, the father decided not to give his permission to the girls being able to go back to live in the UK with their mother.

24. I am not exactly sure when all this transpired in 2016, but since 2016 into early 2017, it seems as if the mother and the father have had a stand-off, with the father refusing to give his permission for the mother to take the two girls to live with her in the United Kingdom; and the mother maintaining the desire to do so, having regard to her desire to go back to more lucrative and satisfying employment in the UK, and to the lives that she and her daughters had started to live over there.

25. Early this year, it seems that the girls and the mother, after some sort of discussion about it, decided that they would try to get the father to sign the visa applications by going around and seeing him personally.  I think, from memory, from reading the evidence this morning the mother said it was the girls’ idea, or at least C’s, if not both of them.  So, the evidence is that the mother drove them round to the place that the father was living in March this year. She waited in the car outside whilst the girls went to the door to speak to their father.  They had not seen him, of course, for some three years. 

26. It must have been somewhat of a surprise or a shock to him to see them.  They presented the visa applications to him and made it clear to him that it was their desire that he sign them as their father to permit them to go back to live in the UK.  Again, apparently, he refused to do so, telling them that he wanted to seek legal advice.  Soon thereafter, unwilling to stay any longer to speak with him, they departed.  On the evidence, that is the only time they have seen him or made any effort to see him since 2014 when they decided, as I had previously mentioned, not to go back and spend any time with him at his home.

27. The mother then commenced proceedings in this court or in the FCC to seek these orders.  The father became a party to the proceedings and maintained objection and opposition to parenting orders being made that permitted the mother to take the children to live with her in the UK.

28. The matter came from the FCC to this court, presumably on the basis of it being regarded as an application for an international relocation, thus falling within the provisions of the protocol that exists between the two courts, by agreement, that this court is the proper court to be determining international relocation issues.  Though, I hasten to add, there is really not a lot of difficulty involved in determining this case on all of the evidence that is currently before the Court.

29. As I said before, the family was seen by a family consultant through the child responsive program.  That family consultant, whose name was Ms B, saw the family and prepared a children and parents issues assessment for the assistance of the Court on 27 July 2017.

30. She defined the key issues for the determination in this case as whether the parents retain equal shared parental responsibility, and whether the mother be permitted to take C and D to live with her in the United Kingdom.  I entirely agree with that assessment. Critically, the family consultant interviewed the children.  In respect of the child, C, Ms B described her as presenting as a confident child who expressed her views and feelings in an articulate manner.

31. Ms B asked her about her relationship with her father and recorded the child as saying that her relationship with her father was not very good from when she was about 9 or 10 years of age.  The child is reported to have told Ms B that her father would always verbally abuse her, and sometimes physically abuse her.  C told Ms B that she did not really want to go and see her father.  She just kept going there because she was scared of what her father might do to her younger sister, D.  She said that her father always yelled at them, and that her father and her paternal grandmother, regularly denigrated her mother.

32. Ms B recorded C as being adamant that she did not consider it likely that at any time in the foreseeable future that she would want to spend any time with her father.  I note C is nearly an adult.  After she turns 18, whether or not she ever spends time with her father, sees him or talks to him, will be entirely a matter for her.  The adult relationship between the father and his daughter C does not appear as if it is going to get off on a very good foot.

1. Ms B also interviewed D.  She described D somewhat differently from her sister C.  She said that she was quiet and reserved.  D told her that she was nervous about meeting the report writer.  Nevertheless, Ms B considered her to be an articulate young person who gave well-considered responses to the questions she was asked.  She said her affect was congruent to the content of the things that she was telling Ms B. 

2. She noted that D said she had no memories at all of the time when she and her sister and mother lived together with their father as a family, as she was only three years old when they separated.  She described her relationship with her father as not being a good one;  also saying that her father yelled at her and her sister all the time, even when they had done nothing wrong.  She said she found him scary when he yelled at them. 

3. Ms B recorded the girls as having made it clear to her that they wanted – and also having reported to her that they had made it clear to their father - to return to the United Kingdom.  They were very disappointed that their father had not facilitated this, and indeed had made it harder for them and made decisions that impacted negatively on their wellbeing, particularly in respect of their mother’s work situation in the UK and the girls’ school situation.

4. Ultimately, Ms B recommended to the Court that in her expert opinion, the mother should have sole parental responsibility for the children.  Particularly, I note Ms B’s reference to the complete inability of the parents to communicate as demonstrated over the last three years.  She also recommended that the children be permitted to relocate to live with their mother in the UK;  that consideration be given to them spending about an hour or so with their father before they leave;  and for the father to be permitted to contact the children via Skype and for them to communicate with him in the same way in accordance with their wishes once they leave the country and go to live in the United Kingdom.

5. The evidence establishes that after that report was released, at some point in time, the father, who was represented at the time by a firm of solicitors here in Melbourne, caused his solicitors to write to the mother’s solicitors saying that he would consent to orders being made in terms of the recommendation of Ms B.  That did not happen. 

6. As I understand it, the evidence supports, and I have been told in submissions made by counsel for the mother this morning, that at one point in time – I am not sure if it was around then or after then – the father made it clear to the mother that he would sign orders that permitted her to relocate the girls to the UK if those same orders provided for the discharge of his arrears of liability to the Child Support Agency, something the mother apparently steadfastly refused to agree to, obviously fairly confident that she would obtain orders from this Court that allowed her to relocate with the girls to the United Kingdom without having to surrender the possibility of one day being sent some money from the Australian Child Support Agency that they somehow had managed to recover from the father.

7. In any event, time was ticking away.  As we know, proceedings pending in this Court can take a long time to come on for trial.  The mother had secured lucrative employment that paid her or was to pay her £55,000 per year back in the United Kingdom, provided she could get back to the United Kingdom by the end of September.  The evidence also established that C was to go into year 12, her final year of schooling, in the United Kingdom and that the school year started in early September, and D was also to go into, on the evidence, year 11, I understand, in the UK, which is somewhat different from the expectation of the year she would go into here, having regard to her age. 

8. But even though he was aware of those facts, the father still apparently refused to give his consent and the mother was forced to make application to this Court for the expedition of an urgent hearing of this application.  Fortunately, ultimately, although regrettably somewhat after the time that she was hoping to get it on, the matter was able to be listed for a hearing before me here in the Melbourne Registry today, Thursday, 12 October.

9. The mother apparently on the evidence has lost the opportunity to take up the position that I referred to where she was going to be paid £55,000 a year, but has managed to secure another position slightly less well paid, but in which she can start as soon as she gets there, provided she gets there soon.  This morning I have been made aware by evidence filed before me that the mother is booked on a flight out of Melbourne to the UK this very evening so that she can get over there and start work in that job. Although the girls are not booked on that same flight, it is her intention to get them on a flight to the UK as soon as possible hereafter, in the event of orders being made by this Court that they can relocate.

10. Earlier this week, aware that the father’s solicitors had filed a Notice of Ceasing to Act, presumably on the basis of either, using the colloquial term, “sacking” the father as their client or, alternatively, having their retainer withdrawn by the father. A Notice of Ceasing to Act was filed and the father thereafter was unrepresented. 

11. There is evidence before me that communication occurred between the mother’s solicitor and the father and that he was indeed aware that the matter had been listed for hearing before the Court this morning on an urgent basis at 10.00 am.  Some negotiations continued in respect of whether or not he would sign an order, and in respect of whether or not costs would be pursued against him. As I understand it, he was informed that the offer to enter into consent orders without pursuit by the mother of a costs application against him was withdrawn, and then some 10 minutes later he signed a draft of some terms that the mother’s solicitors had previously sent to him, by which she would have resolved the proceedings consensually.  I have a copy of those before me.

12. When the matter came on this morning, the mother appeared represented by her solicitor and counsel.  The father did not appear.  He was called formally by my court officer outside the Court on three occasions and he did not appear.  I took the additional step out of caution of having my court officer call him on the Court’s open telephone system so that he could participate in the hearing if he wished, even remotely by telephone.  His mobile telephone number known to the mother was given to the Court.  The court officer dialled it twice, and on the first occasion it rang a couple of times and then simply was stopped.  On the second occasion, it went through to a message bank, although we were not able to leave a message. 

13. I am satisfied on the evidence before me that the father has simply chosen not to attend this morning, although he knew the proceedings were on.  I suspect that he has simply resigned himself, evidenced by him placing his signature on the draft of the orders that I have mentioned before and simply by not attending this morning, and knowing that the orders were likely to be made in his absence, to the fact that at the end of the day, notwithstanding his distress and disappointment and opposition, his daughters’ desire to go and live with their mother in the UK and to have very little more to do with him will prevail, particularly given their age and apparent level of maturity. 

14. Indeed, if that was his apprehension, he was correct, because in all the circumstances of the case, particularly having regard to all of the material that I have already discussed and been through in these oral reasons, I am satisfied that the orders the mother seeks essentially in terms similar to those that were contained in the document that the father put his signature to only a few days ago, should be made; those orders being in the best interests of these two young women. 

15. I am satisfied that the recommendation made by Ms B in respect of a change in the parental responsibility order should be followed.  I have said many times in determining the difficult, complicated and highly conflictual parenting matters that are the staple diet of this particular Court, that where parents are in such high conflict and disagreement that they come before this particular Court for the resolution of their disputes, it is most unlikely that the Court is going to be satisfied that they can communicate with each other and cooperate with each other in a child-focused way such that the Court could find that it is in the best interests of the subject children for their parents to equally share parental responsibility for them. 

16. I am indeed acutely conscious of the fact that the Family Law Act provision is that there is a presumption in favour of it being in the children’s best interests that their parents equally share parental responsibility for them. However, that is subject to rebuttal in a number of circumstances. Relevantly for these proceedings and this decision, it is subject to rebuttal simply where the court is satisfied on the evidence that it is not in the best interests of the children for their parents to equally share parental responsibility for them.

17. Notwithstanding the fact that there was such an order put in place by these parents in 2007, I am indeed now satisfied that the relationship between the parents, the relationship between the father and his teenage girls and their inability to communicate and be child-focused around what is in the best interests of these girls makes it completely against the best interests of the girls for there to be an expectation that their parents equally share parental responsibility. 

18. I say that particularly because section 65DAC of the Family Law Act imposes certain obligations on parents or on people who share parental responsibility pursuant to orders of this Court. There are three particular obligations imposed in circumstances where a decision about a major long-term issue (as that term is defined in section 4 of the Act) in relation to the children has to be made.

19. Those three obligations are these:  (1) That parents must consult with each other, so when a parent with whom children live is required to or desires to make a decision about a major long-term issue, that is, health, education, name, moving to a different country, etcetera, they must consult with the other parent who has the benefit of an equal shared parental responsibility order. (2) Not only must they consult, but they must make a genuine effort to actually try and resolve matters and reach agreement about the decision.  (3) The third obligation is critical - those parents must jointly reach the decision that is made and it must be a decision that both parents agree upon. 

20. Section 65DAC of the Family Law Act provides no fall-back position.  There is no alternative where a decision about a major long-term issue is to be made by parents who share parental responsibility than to reach agreement on it, otherwise it cannot be made.  Such a decision is not permitted to be made unilaterally.  For example, the choice of secondary school that a child goes to after they have finished primary school, which is clearly a decision about a major long-term issue, cannot be made unilaterally.  If it cannot be made by agreement, then the parties have to go back to family dispute resolution counselling or take the matter back to court. 

21. Consistent with what I have said in many of the decisions I have decided in the last seven years, where I am satisfied that parents simply cannot communicate and cannot put the best interests of their children ahead of their own animosity to the other parent, it is not in the child’s best interests to maintain an obligation on their parents to undertake those sorts of things when making decisions about major long-term issues.  This case is no different.  I am quite satisfied that in this case, the best interests of these two girls are satisfied by conferring upon their mother sole parental responsibility for those children.

22. Having done that, I am not required to go on to consider s 65DAA, which is about equal time with each parent; whether it is in their best interests; whether it is reasonably practicable.  Even if I had to, it would not be reasonably practicable in this case in circumstances where the mother wants to relocate the children to the UK.  So, particularly in the absence of the father, and with the existence of his apparent consent or resignation as to the outcome, and, most particularly, having regard to the desires and wishes of these girls and the evidence about the need for their mother and these girls to get to the UK as quickly as possible, I am also satisfied that the girls should be permitted to be relocated by their mother to the UK to live. 

23. Although an order conferring sole parental responsibility for the children on their mother is, at law, enough for her to be able to get passports for the girls without their father’s signature, to get visas for the girls without their father’s signature, to get all those things that are needed to travel internationally, I understand that sometimes even with a sole parental responsibility order, parents are confronted with difficulties at the Passport Office and such places unless there is specific reference to the issue in the order. Although I do not actually consider it absolutely necessary, I will make express orders permitting it to make it clear that the mother has that right in this case.

24. I am satisfied that it is also in the children’s best interests in respect of their long-term relationships with their father for an order to be expressly included that provides for them to have communication with him in accordance with their wishes.  Having given all those reasons, I now make these following orders.

Costs

1. Section 117 of the Family Law Act sets out the Court’s jurisdiction in respect of the making of costs orders in proceedings before the Court under the Family Law Act. The first subsection of s 117 sets out what we generally describe as the general proposition that in matters in proceedings under this Act, each of the parties is to bear their own costs. Of course, without going into a great deal of discussion about it, there is sound reason why, particularly in parenting cases, that provision in the general sense exists.

2. However, it is subject to provisos or other sections having application. Where the Court is satisfied that in all the circumstances it is justified in so doing, it can make orders as to costs against one party or both as it considers just.  There are two parts to the determination.  The Court has to be satisfied that the circumstances justify it, and the Court has to be satisfied that the order that it makes is just. 

3. In reaching those determinations, the Court must consider the matters that are set out in s 117(2A), and there is a whole list of them with which I am familiar. In this case, I have had regard to them all, and in particular, I have regard to the breadth of the discretion that is given. Section 117(2A) (g) says “such other matters as the Court considers relevant”.

4. In this particular case, Mr Barton for the mother asks for an order that the father pay the mother’s costs of and incidental to these proceedings.

5. Counsel for the mother makes application to the Court for the husband to pay all of the wife’s legal costs of and incidental to bringing the proceedings to this Court fixed in the sum of $15,598, essentially based on the submission that she only commenced the proceedings in the Court once it became clear to her that they were necessitated by the father’s continued refusal to agree to the change in the parenting orders to the extent that the mother sought and in respect of which she has now been wholly successful.

6. The mother’s counsel also makes application on her behalf for an order that the husband pay the mother three and a half thousand dollars, being reparation to her for the loss of that amount of money caused by having to cancel and reschedule air tickets that she had in place to return with the children to the United Kingdom. 

7. I am satisfied, although he is not here present today and able to mount an argument against this application, that the father was aware that costs were going to be sought against him on an indemnity basis.  Indeed, I am satisfied that was one of the reasons why he apparently hastily signed the terms of the draft that had previously been sent to him by the mother’s lawyers, in particular, ten minutes after he had been advised that consent was no longer possible without there being any costs consequences for him. 

8. I am satisfied that he was aware, and given that he was legally represented, that he would have always been aware, that costs potentially might follow the event, if at the end of the day he was wholly unsuccessful in the proceedings.  I place a great deal of weight on the fact that he was wholly unsuccessful and he has been wholly unsuccessful in terms of the position maintained by the mother from a time well and truly before the mother even commenced her proceedings. 

9. I am also satisfied that he was put on notice by a registrar once the matter was before the Court that he faced the real risk of costs being ordered against him, including in respect of the mother’s loss caused by cancellation and rescheduling of flights, attributed to nothing other than the inflexible position that the father took in respect of this matter.

10. I am also highly conscious of, and in making my determination place a great deal of weight on, the evidence that the father had, through his lawyers, indicated that he was going to agree to orders being made in terms of the recommendations of Ms B, the family consultant, but that he then insisted that his consent would only be forthcoming if the mother agreed to wipe all of his child support arrears that I have already referred to earlier in these reasons. 

11. I am conscious of the evidence that I have seen that the father is said to have no property. The mother also speculates in her evidence that the father may work in jobs where he gets paid cash where there is no record and where presumably no tax is paid by him.  I am also aware of the evidence that he owes the Child Support Agency $17,000. As I have said to counsel for the mother this morning, my experience is that the Child Support Agency has a far greater prospect of being able to recover money owed to it such as that amount, than the mother will in being able to recover money owed to her pursuant to costs orders.

12. Nevertheless, a consideration that the father does not have great financial circumstances is not enough alone to persuade me that a costs order should not be made against him in these circumstances.  Litigants simply cannot belligerently choose to maintain litigation in this Court based on some assessment that (a) it is unlikely that they will be ordered to pay costs; and/or (b) that even if they are, they will never pay them because they do not have any assets or traceable income. 

13. Although I accept the father is no doubt distressed at the loss of his relationship with his daughters, but his inflexible position was maintained in the face of expert opinion and, I have little doubt, in the face of advice that what the mother was seeking was clearly in the best interests of these two girls and not necessarily being proposed to compromise the father’s relationship with these girls or his ability to redevelop and again maintain a relationship with them. 

14. In all the circumstances, I do consider that a costs order is justified, and I am satisfied that an order that the father pay the mother’s costs fixed in the sum of $19,098 is a just order, and I so order.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 12 October 2017.

Associate: 

Date:  26 November 2019