ANDERSON & TAYBOR
[2014] FamCA 23
•24 January 2014
FAMILY COURT OF AUSTRALIA
| ANDERSON & TAYBOR | [2014] FamCA 23 |
| FAMILY LAW – JURISDICTION – Threshold issue – Whether there are significant changes in the mother’s circumstances to warrant a fresh hearing – Consideration of and application of the rule derived from Rice & Asplund (1979) FLC 90-725 – Best interests of the child – Where the Applicant seeks to reverse the existing parenting Orders FAMILY LAW – COSTS – Where the Applicant has been wholly unsuccessful – Conduct of the Applicant – Independent Children’s Lawyer seeks specific sum as to costs – Respondent seeks costs on indemnity basis |
| Family Law Act 1975 (Cth) ss 117(1), (2), (2A), (4) Family Law Rules 2004 (Cth) rr 19.08(3), 19.18, 19.34(2) |
| Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 | ||
| APPLICANT: | Ms Anderson | |
| RESPONDENT: | Mr Taybor |
INDEPENDENT CHILDREN’S LAWYER: | Stanfords Solicitors |
| FILE NUMBER: | PAC | 5282 | of | 2008 |
| DATE DELIVERED: | 24 January 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 11 November 2013 |
REPRESENTATION
| THE APPLICANT: | Self-represented Litigant |
| COUNSEL FOR THE RESPONDENT: | Mr Gersbach |
| SOLICITOR FOR THE RESPONDENT: | Matthews Folbigg Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Druitt |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stanfords Solicitors |
Orders
The mother’s Initiating Application filed 15 October 2010, in its entirety, is dismissed.
The mother is required to seek and obtain the leave of the Court to file any application in respect of the child E, born … February 2005 (“the child”), prior to the child attaining the age of eleven (11) years.
The mother is to pay the costs of the Independent Children’s Lawyer in the sum of $3,988 within two (2) months from the date of these Orders.
The mother is to pay the costs of the father, as have been incurred in these proceedings since 12 October 2012, on an indemnity basis, as agreed or as assessed by an Assessing Officer.
(a)In the event of an agreed amount, the mother is to pay such amount within six (6) months of the date of agreement.
(b)In the event of an assessed amount, the mother is to pay such amount within three (3) months of the date of assessment.
Otherwise, all outstanding applications and cross-applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Anderson & Taybor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5282 of 2008
| Ms Anderson |
Applicant
And
| Mr Taybor |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This application concerns E (“the child”), who is almost nine years old. The child’s parents, Ms Anderson (“the mother”) and Mr Taybor (“the father”) had a relationship in which they lived together from the end of 2004. In February 2005, the child was born.
In July 2008, when the child was three and a half, she was taken by her mother to Country B in Europe, the mother’s country of origin, without the father’s consent or knowledge. Legal proceedings were commenced in Country B in July 2008, and in March 2009, the father recovered the child in Country B and returned to Australia with her.
On 4 September 2009, final parenting Orders (“the parenting Orders”) were made, following a contested hearing of several days (“the parenting hearing”).
On 15 October 2010, the mother filed an Initiating Application to have the parenting Orders revisited. The mother proposes in that application to significantly change the parenting Orders. The father opposes the mother’s application and seeks orders that the application be dismissed and that the mother pay his costs on an indemnity basis.
Being an application to amend final parenting Orders, the question for me to determine is whether there has been a sufficient change in circumstances such that it is in the child’s best interests for the proceedings to be reopened.
Background
The father was born in 1958 in Country A in Europe and came to Australia when he was 11 years of age. The mother was born in Country B in Europe in 1974 and came to Australia in about 2003.
In early 2004, the mother and the father met and formed a relationship with the mother moving into the father’s home towards the end of 2004.
In February 2005, the child was born.
The mother visited Country B with the child three times in 2006 and 2007 and the family also visited Country A to meet members of the extended family. There was a further trip to Country B with the mother and child in early 2008.
On 17 July 2008, the mother travelled to Country B with the child, without the father’s consent or knowledge.
On 27 July 2008, the father received an email from the mother that she would be coming back to Australia but not before 15 October 2008. This did not eventuate.
Later in July 2008, an application was made for the child to be returned under the Hague Convention.
Although indicating there was some prospect of the father being able to see the child in Country B, the mother refused the father having access to the child in Country B when he travelled there.
On 6 November 2008, Orders were made in the Family Court for the parents to have equal shared parental responsibility for the child.
On 10 November 2008, the Country B Court determined that the mother was to return the child to Australia within six weeks and if she failed the father would be eligible to do so at the mother’s expense. The mother lodged an appeal against this decision in December 2008.
In January 2009, the mother’s appeal was heard in Country B and was dismissed. The mother went into hiding with the child in Country B and the Country B authorities appeared to be unwilling or unable to assist in the child’s recovery.
In mid-March 2009, the father located the child, took her from the mother at a shopping centre and returned with her to Australia.
There were proceedings in the Family Court upon the father and child’s return, with a number of Court events in March and April 2009.
On 2 April 2009, interim Orders were made by the Family Court for the mother to have supervised time with the child, but on the first occasion that occurred, the mother made an immediate complaint to the police that the child had been sexually assaulted by the father. This resulted in the father being taken into custody for the purposes of a police interview and the child being taken to a police station for the purpose of being interviewed, though she was subsequently returned to the father. The Department of Community Services (as it then was) expressed concern that the child was coached by the mother in respect of allegations against the father.
When the matter was back before the Family Court on 6 April 2009, an order was made for the child’s interests to be represented by an Independent Children’s Lawyer. On 28 April 2009 an order was made that the mother’s time with the child be supervised.
The final parenting Orders were made on 4 September 2009 following the parenting hearing of four days in duration, at which time the mother was legally represented.
Since the parenting Orders were made, the child has lived with her father and spent time with her mother. The father has sole parental responsibility pursuant to the parenting Orders. Under those Orders, the child spent time with the mother for two and a half hours each Friday afternoon, for four hours each alternate Saturday afternoon and for four hours each other Sunday afternoon until she turned eight. Each of these periods of time were supervised and occurred at a contact centre.
Since the child has turned eight (February 2013), pursuant to the parenting Orders, she spends supervised time with her mother each Saturday for such time as the contact centre can facilitate. When the child turns 11 years of age she will spend unsupervised time with her mother each alternate weekend.
On 15 October 2010, the mother filed an Initiating Application seeking orders that the parents share parental responsibility equally for the child, that the child live with the mother and spend time with the father five days each fortnight.
Between November and December 2010, the mother attended a parenting course at Relationships Australia held over six evenings.
On 24 March 2011, at a case management hearing in respect of this application, Collier J raised the issue of the need for a further expert report, which was not opposed by the mother’s legal representative. The mother indicated on that day that she was willing to subject herself to further evaluation by an expert. On that date, a hearing date of 9 May 2011 was also allocated for this application.
At a case management hearing on 3 May 2011, the hearing date of 9 May 2011 was vacated. The issue of the mother attending upon Dr Q or, if she was not available, another expert as agreed between the parties, was raised again. The matter was stood over to be relisted following the release of such a report, to be obtained solely by the mother.
No Court events took place between May 2011 and August 2012, awaiting the preparation of the report. It appears the mother was not proactive in making arrangements for the preparation of the report, and by May 2012 it was known Dr Q was overseas. Emails exchanged between the mother’s and father’s solicitors in June 2012 suggested that the parties should wait for the return of Dr Q from overseas in September 2012. When Dr Q became available on 26 September 2012, the mother did not make arrangements to see the doctor.
Further delays were then occasioned by the mother in September/October 2012 seeking Collier J disqualify himself from hearing the matter, despite his Honour raising the matter in a mention as far back as March 2011 to previous solicitors acting for the mother. His Honour disqualified himself from further hearing the matter in October 2012. The proceedings were again stood over awaiting the preparation of the report.
In April 2013, the mother filed an Application in a Case for the appointment of a new Court expert and for interim variation of the parenting Orders with respect to the mother spending time with the child.
On 15 April 2013, in proceedings before Johnston J, his Honour indicated that he would not hear an interim application prior to the receipt of an expert report. The mother agreed to seeing Dr Q.
On 20 June 2013, the parties’ interviews with Dr Q were confirmed, but on 1 July 2013, the mother’s solicitor informed the other parties that the mother could not afford the expert report and interviews with Dr Q were cancelled.
4 September 2009 – The Parenting Orders
At the parenting hearing, which resulted in the parenting Orders of 4 September 2009, the then Applicant father and the Independent Children’s Lawyer sought similar orders for the child to live with the father and spend very limited and supervised time with the mother, whilst the mother sought an order that the child live with her and spend alternate weekends with the father.
The father’s case, as revealed in Collier J’s Reasons for Judgment of 4 September 2009, was that the mother had a poor relationship with the child and did not appreciate, nor understand, the responsibilities of parenthood. It was his case that the mother sought and continued at the time of the hearing to seek to alienate the child from him and had made allegations concerning him sexually abusing the child in a manner that the mother knew to be unfounded. The father’s case was that these allegations of sexual abuse pre-dated the return of the child to Australia and included articles that had appeared on the internet in which the father was described as a paedophile. His case also was that the mother was at that stage intending to, and would if given the opportunity, remove the child from Australia and return with her to Country B.
The mother’s case at the hearing was that the father was not a suitable person to care for the child. She asserted that prior to her leaving Australia with the child the father was violent and that she lived in extreme fear of him and continued to do so in Country B, and this was her reason for not returning to Australia in breach of Court Orders. She also asserted that the father drank heavily and was a poor and dangerous driver. It was also mentioned in the hearing that the father had been involved in misconduct involving a Local Government authority and the mother appeared to assert that the father, knowing that he might face some punishment, was seeking to have the child live with him in an effort to minimise any sentence that might be imposed upon him.
At the hearing, affidavits of nine witnesses and the expert were relied upon but the father, the mother, Dr Q (“the doctor”) and Mr Y (who was providing rent-free accommodation for the mother at the time of the hearing and into the foreseeable future) only were required for cross-examination.
The doctor was described by Collier J as being cross-examined “at some considerable length” by the mother’s counsel, who indicated to the doctor that he was challenging her report. The mother’s counsel submitted to Collier J that his Honour would have real concerns about accepting the doctor’s report, her views and her recommendations and, particularly, referred to flaws in the doctor’s methodology. His Honour considered these submissions and was not satisfied of their merit and concluded that the observations and opinions of the doctor were soundly factually-based and accepted her diagnosis. The evidence of the doctor appeared to play a significant part in his Honour’s Reasons for Judgment.
His Honour considered what he described as “allegations, suggestions and under-currents” that the father had in some way been involved in paedophilia, including the time prior to April 2009, and was satisfied that the mother was determined from when the child first spent time with her following her the return from Country B to make an allegation in a last ditch attempt to have the father proven unworthy or unsuitable to care for the child so she would be returned to her. His Honour also considered the issue of violence and was satisfied that there had been no violence by the father towards the mother in the course of their association. His Honour considered the father’s driving and described it as a matter that caused him real concern but did not find it to be a disqualifying factor in relation to the care of the child. His Honour also considered the father’s drinking and, whilst he had some concerns, it was not as such to indicate that he was not an appropriate carer for his child.
In his Reasons for Judgment, when applying the s 60CC considerations to the facts, his Honour had particular regard to the evidence regarding willingness and ability of each of the child’s parents to facilitate an ongoing relationship with the other. His Honour was particularly concerned about the mother’s determination against the child and father having a relationship and her lack of willingness to facilitate and encourage a relationship between the child and the father. His Honour was satisfied she would not in the future, despite her protestations, change that view. His Honour was also particularly concerned with the likely effect of any change in the child’s circumstances, which he described as a stark choice in this matter. His Honour described the dramatic change of returning the child to the mother as also involving separating the child from her father, who she had lived with for a period of time and in a situation to which she had clearly made a good adjustment. Further, his Honour considered that placing the child back in the mother’s care would potentially expose her to the matters he identified that stemmed directly from the mother’s attitude towards the father, the effect of which he described as potentially catastrophic. His Honour was satisfied that the child would be devastated if the mother were able to exclude the father from her life.
Another area of particular concern for his Honour was the capacity of the mother to provide for the needs of the child. Although his Honour concluded that clearly each parent had the capacity to care for the child on a day-to-day basis, he had concern for the emotional needs of the child and, in particular, the mother’s failure to see the harm that was perpetrated by removing the child from her father and not allowing the child to see her father in Country B. His Honour was satisfied that the mother would endeavour to undermine the child’s relationship with the father to the greatest extent possible.
In considering the presumption of equal shared parental responsibility, his Honour found that it would be highly improbable that the parties could establish the level of communication that would be required to co-parent the child and also found that the absence of trust on both sides was a relevant factor in this regard. His Honour was satisfied that there was clear evidence to indicate that it would not be in the child’s best interests to require the parties to have equal shared parental responsibility.
His Honour’s conclusion was that the child must live with the father for the medium and long-term future. His Honour gave “considerable thought” to the mother’s submission that there might be some utility in making interim orders leading to a change at an appropriate future time, but came to the conclusion that he could make orders of a final nature that would provide the best opportunity for both parents to be involved in the child’s life, and made particular reference to a regime to cover the situation many years into the future.
In relation to his Honour’s findings concerning the willingness of the mother to facilitate and encourage a relationship between the child and the father, the likely effect of any change in the child’s circumstances and the capacity of the mother to provide for the emotional needs of the child, his Honour appears to have placed considerable weight upon Dr Q’s opinion.
The doctor found that the child’s history was one of a primary attachment relationship with the mother from birth and, in the absence of other factors, her needs would best be served by returning to the primary care of her mother and having regular contact with her father. However, in the doctor’s opinion there were a number of factors that weighed against this, including that the child was very settled with her father and there were risks in up-rooting her, that the mother possibly remained a flight risk and that the determined campaign in Country B to vilify the father supported the father’s view that the mother would stop at nothing. The doctor regarded the mother’s presentation as “superficial and contradictory” and concluded it was difficult to have confidence in what she says.
The doctor said there was reason to be concerned about the mother’s capacity to meet the child’s emotional and psychological needs. The doctor found that, although she was well able, physically and intellectually, to provide for the child, she did not show a strong child-focus and her capacity for empathic sensitivity to the child was limited. On the basis of the clinical interview, the doctor said there was sufficient observable disturbance to suggest a clinically significant personality disorder, cluster B type with predominantly histrionic and narcissistic features. She noted that testing that was carried out in County B also suggested such features, although that assessment was short of a clinical disorder.
The doctor said that the importance was not so much the precise categorisation of the personality disorder, but the degree to which clinical disturbance affected parenting functions and said that in this case there was considerable impact on parenting.
Significantly, the doctor said that whilst there may be some benefit in the mother receiving counselling, it is unlikely that much alteration of personality style could be achieved except over a period of some years, being too long a period to influence her parenting capacity during the child’s critical development years. She said it may be preferable that the mother receive counselling aimed at heightening her awareness of the child’s emotional and psychological needs.
The doctor also said that whilst the mother’s attitude to the child has been quite caring in many ways, she clearly has not accepted the importance of the father in the child’s life and sought to eliminate him and showed little regard for the importance of the father in the child’s development. The mother gave the doctor the impression that given the opportunity the mother would seek to alienate the child from her father and, for this reason, there were concerns about a transition to unsupervised contact. The doctor recommended that the child continue living with the father and have a strict regime of gradually increasing time with her mother over a period of years, beginning with supervised time.
The Mother’s Application
In her application, the mother seeks orders that all previous parenting Orders be discharged, that parental responsibility for the child be equally shared between the parents, that the child live with her and spend time with the father for five days per fortnight and half of each school holiday period. She proposes an alternate order that the child live with the father and spend time with her for a minimum of five days per fortnight and half of each school holiday period. In other words, the mother is seeking very similar orders to those which were considered at the parenting hearing.
In her affidavit in support of the application, the mother appears to seek a range of other orders relating to physical discipline, psychological or psychiatric assessment of the father, for the father to undertake parenting courses and a range of other orders, which were not pursued at the hearing.
In support of her application the mother raises seven concerns, which can be grouped together as follows. Firstly, the mother makes a number of allegations about the father’s suitability to care for the child asserting that he inappropriately physically disciplines the child and verbally abuses her, that he does not ensure that she attends school as required or arrives late, that he does not ensure that she receives appropriate medical attention, that the father does not appropriately attend to the child’s personal hygiene and that he does not provide sufficient money for school activities and clothes or provide her with appropriate food. Secondly, the mother asserts that the father emotionally manipulates the child, and finally, makes allegations that the father has breached the parenting Orders, though this was not pursued at the hearing.
In relation to the first category of matters raised by the mother, that the father is not a suitable person to care for the child, there is no evidence in her affidavit to support any of the allegations about the adequacy of the father’s care. There is, however, some concerning evidence from the school records that the child had a number of unexplained absences from school, or late arrivals, in 2011 in particular.
In the affidavit in support of her application, the mother raises some additional matters, which are not referred to in her application. The mother was permitted to develop these matters in oral argument as they were clearly significant to support her contention that there had been a change of circumstances such that it would be in the child’s best interests to revisit the parenting orders.
The first of these additional matters is that the mother has demonstrated through her attendance at a parenting course with Relationships Australia and her attendance at and interaction with the child at the contact centre that she provides a good quality of parenting to the child. In support of this contention the mother annexes photographs of the child’s time with her at the contact centre and relies on letters from the contact service to the effect that she provided meals for the child to take home as well as snacks and drinks for the duration of the visit, that she frequently provided the child with clothing and footwear and other items and that the mother’s interactions with the child during supervised visits were always appropriately child-focused, warm and amicable. One of the letters also confirms that the child presented as eager and happy to see the mother during the supervised visits and that the father has on a number of occasions delivered the child to the incorrect entrance of the contact centre.
Another matter contended by the mother, and supported by psychological reports annexed to her affidavit, is that she does not suffer from any psychological or psychiatric disorder that impacts upon her capacity to care for the child. I closely scrutinised the mother’s contentions in relation to this argument as I had initially understood her to be asserting that, through treatment or otherwise, she had overcome any psychological disorder that she had previously suffered and, in particular, that had been identified by Dr Q. However, the mother contended in argument that the psychological reports were annexed to prove that Dr Q was wrong and that she had not suffered from the conditions identified by Dr Q at any time.
The mother next contended that she had, since the date of the parenting proceedings, maintained appropriate rented accommodation, which was prepared and available for the child, that she had obtained and maintained employment and was a valued employee and thereby able to provide financially for the child.
Finally, the mother contended that she is required unfairly to pay for various items in relation to the child’s time with her, such as contact service visits, telephone calls, petrol for travel to the visits, rent and takeaway meals, which she provides for the child as she asserts that the child is not adequately fed by her father. Essentially, the mother’s argument in relation to these matters is that she considers it unfair that she sees the child on such a limited basis and is required to contribute financially as the child is not fed or clothed properly.
The father’s Response is supported by an affidavit in which he disputes that there is any significant change in circumstance since the parenting Orders were made. The father says that since the parenting Orders were made he has lived with the child at his mother’s home and that she has attended the same school since kindergarten, approximately 800 metres from the home and is happy, settled and doing well. School reports and results indicate that the child is progressing very well academically and the father indicates that she is participating in a wide range of extra-curricular activities.
So far as the allegations of inadequate care are concerned, the father says that the child is in good general health and is generally quite cooperative at home, though occasionally he does discipline her, including physical discipline on rare occasions.
The father annexes to his affidavit a chronology of the proceedings, which was tendered without objection in Court on 19 August 2013. The father says that the ongoing proceedings in relation to parenting, which have been on foot for more than half the child’s life, undermines his parenting of the child and encourages an expectation in the child that she may be returning to live with the mother, which is not in the child’s best interests.
The father says that he still considers that the mother may flee Australia and annexes correspondence between the Chief Justice and his legal representatives concerning recent proceedings initiated by the mother in the European Court of Human Rights, about which the father had no knowledge until he received a letter from the Chief Justice in October 2012. The father says that despite requesting information from the mother about these proceedings, she has not provided it. The father also expresses concern that the mother has deliberately lied about the Court proceedings in Country B and Australia on a number of occasions, including alleging that the mother told the Country B Court that the father had bribed the judge in the Australian proceedings and that she accused him of bribing the Country B Court.
In relation to the issue of the mother remaining a flight risk, the father also related an incident in early 2013 where he allowed the child to spend a short time with her mother outside the parenting Orders as he happened to be with the child in the vicinity of the mother’s home. He said in his affidavit that the agreement was that the mother could have an ice-cream with the child and bring her back in an hour or so, but the mother did not bring the child back at the agreed time and instead took her directly into a block of residential units.
The Submissions
Although there are discrepancies and inconsistencies between the mother’s application, her affidavit and her argument in support of those submissions, I understand that the mother’s application that the parenting Orders be revisited is based on the following:
a)That the father has inadequately cared for the child since he has had sole parental responsibility for her and she has lived with him, and he is not a suitable parent;
b)That based on psychological and counselling reports recently obtained, Dr Q’s assessment of the mother’s psychological state is incorrect and that the mother has never suffered from any psychological or psychiatric disorder which impairs her parenting;
c)That the mother has since the date of the parenting proceedings improved her parenting capacity by attending a course and obtained suitable accommodation and employment to support the child; and
d)That it is unfair that the mother has limited time with the child but is required to contribute financially as the child is not fed or clothed properly.
It is submitted by the father that there is no evidence to support the allegations of his inadequate care. Further, the father contends that complaints, such as that the child is inadequately fed or that the father provides insufficient money for extra-curricular activities and does not attend to the child’s hygiene and the like, are petty in nature.
So far as the evidence concerning the mother’s psychological state is concerned, it is submitted by the father that the mother’s position in this application does not amount to changed circumstances but a challenge to the original psychiatric evidence. Further, it is submitted that the evidence is given by practitioners who, in any event, not being psychiatrists, do not have the appropriate expertise to give evidence in relation to the mother’s mental condition. It is submitted that Dr Q’s diagnosis was the most important matter underpinning the parenting decision and the psychological reports the mother has obtained do not suggest that the mother’s mental health problems have been treated, as they challenge the diagnosis. It is contended by the father that the mother making pre-packed food and giving it to the child at the contact centre for her to take home, and taking photographs of the meals, re-enforce the mother’s unusual personality, which has not changed.
The father also contends that the mother’s failure to inform the father of the proceedings in the European Court of Human Rights indicates that there has been no change in the circumstance of the existence of some risk that the mother wishes to return to Country B with the child and will do so, given the opportunity.
The Independent Children’s Lawyer also submits that there is no change in circumstances in this matter. The Independent Children’s Lawyer also stressed the centrality of Dr Q’s report to the parenting decision and reminded the Court of the extensive material to which Dr Q had regard in forming her opinion and the extensive cross-examination of her at the hearing. It is submitted that the mother has not demonstrated any change in circumstance in light of his Honour’s acceptance of Dr Q’s diagnosis. The Independent Children’s Lawyer submits that the contents of the psychologist’s report tendered by the mother also in fact supports Dr Q’s diagnosis that the mother focuses upon her own needs and the impacts upon her of the separation from her child over the past four years, whereas Dr Q has recommended counselling aimed at heightening her awareness of the child’s emotional and psychological needs. It is submitted that what is required in order for the matter to proceed is a significant change in circumstances in the context of the best interests of the child, which is not present in this case.
The Independent Children’s Lawyer submits that the areas in which the mother contends she has made the most significant progress (the quality of her day-to-day care in particular) were not the matters upon which her original application did not succeed. The Independent Children’s Lawyer submits that the great lengths the mother has gone to in ensuring the child’s time with her at the contract centre is varied and of a high quality, as demonstrated in photographs and letters of support, are all focused on impressing others and are an attempt by the mother to meet her need to nurture the child.
It is submitted that, in the circumstances of this matter, the criticisms about the adequacy of the father’s care is not a change in circumstance as the mother has been critical of it from the outset. The Independent Children’s Lawyer submits that, although the evidence of school attendance is concerning, in the context of this case it is not sufficient to result in the parenting Orders being revisited.
It is submitted by the Independent Children’s Lawyer that re-opening the litigation is the very circumstance that his Honour tried to avoid in carefully crafting orders to meet the child’s needs for years into the future and that it is not in this child’s interest to have continuous litigation.
The Law & Discussion
As is clear from recent Full Court decisions, such as Prewett & Mann[1] (27 August 2013), there is no doubt that the principles established in Rice & Asplund[2] and the subsequent line of authority apply to proceedings such as these where a party is seeking to have final parenting orders reconsidered.
[1] [2013] FamCAFC 130
[2] (1979) FLC 90-725
The so-called “rule in Rice & Asplund” arises from remarks made by Evatt CJ in that case at [78,905-06]:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change in an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …
Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
As further explained in Prewett & Mann (supra) at [9]:
The rule is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).
The way in which the rule is to be applied was set out by the Full Court in Marsden & Winch[3], where it was said at [50]:
… The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[3] [2009] FamCAFC 152
In this case the parenting decision was based to a great extent upon the evidence of the psychiatric expert, Dr Q. It is clear from the Reasons for Judgment that the mother had suitable skills to care for the child on a day-to-day basis and that the child was closely and securely attached to her. There was no criticism of the mother’s employment status or accommodation in terms of her capacity to provide for the child’s needs, nor was there a criticism of her practical parenting skills. Accordingly, the evidence concerning the mother’s current employment, accommodation and having completed a parenting course in 2010 does not amount to a change in circumstances.
Similarly, the evidence relating to the mother’s psychological functioning does not, in my view, amount to a change of circumstances. Firstly, and of greatest significance, the mother does not assert or contend that she has received psychological treatment for her personality disorder and the psychologists upon whom she has attended do not purport to hold the appropriate expertise to treat this disorder. Moreover, the psychologist’s report, which was obtained by the mother without the psychologist having the benefit of any collateral evidence, suggests that the mother does not and did not suffer from a personality disorder, and it is clear that the mother is endeavouring to challenge the original diagnosis upon which the parenting Orders were made. The mother is not, in fact, contending that any circumstances have changed. As is clear from the Reasons for Judgment the mother was legally represented at the parenting proceedings, her counsel challenged the doctor’s evidence strenuously and extensively cross-examined the doctor upon it but his Honour accepted the doctor’s evidence and it was central to his decision.
As is clear from the uncontested facts, to successfully contend that circumstances have changed, the mother is well aware that she needs to demonstrate that she accepted the diagnosis of a personality disorder and has been treated for it by a suitably qualified psychiatrist. A challenge to critical evidence does not amount to changed circumstances and cannot be permitted to re-litigate that issue years after the decision was made.
So far as the mother’s allegations of unsuitable and inadequate parenting by the father are concerned, they amount, in my view, to little more than mere allegations unsupported by any evidence. There is no evidence in the mother’s application to establish even a prima facie case of changed circumstances, which the Full Court in Miller & Harrington[4] said was an appropriate formulation of what it is that an applicant is required to establish.
[4] (2008) FLC 93-383
Although some of the contact centre reports reveal that occasionally the child complains of arguments with her father and the father agrees that on occasion he disciplines the child, there is no prima facie case that the father uses inappropriate physical discipline or verbally abuses the child. There is also no evidence that he fails to provide for her financially or neglects her medical or hygiene needs. There is, however, some concern that the child had a number of unexplained absences from school, especially in 2011. However, as these unexplained absences significantly decreased in 2012 and there is no evidence to suggest that this is a current problem, and in light of the current evidence of very high academic performance, this issue alone, in all of the circumstances in my view is not sufficient to result in a revisiting of the parenting Orders.
The mother’s evidence that she provides additional meals at the contact centre for the child to take home as the father is not feeding her adequately, together with the photographs from the contact centre and letters of support from contact centre supervisors, appear to be an attempt at demonstrating the mother’s superiority as a parent. In the parenting proceedings, the mother also contrasted the father’s inadequacy to her own superiority as a parent, albeit in relation to different parenting issues. The underlying contention is the same as was considered in the parenting hearing and was not particularly significant, in any event, in the sense that each parent was found to have suitable skills to care for the child on a day-to-day basis. Accordingly, I find that these matters do not establish the mother’s case at a prima facie level and, in any event, would not amount to changed circumstances in this matter to warrant re-litigation.
Finally, the general contention of the mother about having been unfairly treated in the proceedings and the impact that has had upon the mother psychologically and financially could not be in any way considered as changed circumstances such that it is in the child’s best interest to have the matters re-litigated.
It is my view that the matters upon which the mother’s application is based do not amount to a change in circumstances. Further, whilst the mother’s personality disorder remains untreated, there is little likelihood of the parenting Orders being varied in the significant way that the mother seeks even if there were to be a new hearing. It is unlikely, in my view, that there would be any variation in the Orders considering that they provide for a developing regime of the child’s time with the mother, which has occurred, apparently successfully, over the past four years. There are some indications that the child may be aware of the mother’s application in circumstances where she has had to manage ongoing litigation between her parents, and at times significant disruption for over half her life. In these circumstances, any possibility of a minor change to the orders is out-weighed by the potential detriment to the child caused by the litigation itself.
Accordingly, having found that there is no changed circumstance to justify entertaining this application, the application must fail and is dismissed.
The Independent Children’s Lawyer, following submissions in relation to the threshold issue and costs, sought an order for the mother to be required to seek the Court’s leave before being able to file any application in the next three (3) years. The father supported such an order. This period of time would have the child at about the age of 11 years, and bring about the eventual outcome of the parenting Orders, which I have chosen not to disturb. I am of the view that such an order would be appropriate in this case, but I will make the restriction only until the child attains the age of 11 years.
The Costs Applications
Having dismissed the mother’s application, both the Independent Children’s Lawyer and the father seek that an order be made for their costs to be paid by the Applicant in respect of these proceedings.
The Independent Children’s Lawyer seeks an order that the Applicant pay $3,988 in accordance with the Legal Aid scale and the father seeks that his costs of and incidental to the mother’s application be paid on an indemnity basis, as agreed or as assessed. He seeks such costs be paid as and from 12 October 2012 to date, being costs incurred since the making of previous costs Orders against the mother on a solicitor/client basis earlier in these proceedings.
The father filed an affidavit of his solicitor, Ms Grew, sworn 25 October 2013, in support of his application for indemnity costs. That affidavit sets out the costs agreement between the father and his solicitor, the solicitor’s hourly rate, the father’s accounts in respect of legal fees rendered since 12 October 2012. His solicitor’s fees and disbursements since 12 October 2012 total $5,797.30 and his counsel’s estimate of costs in respect of the hearing of this application is $3,500 (inclusive of GST). Therefore, it was estimated his total costs for this period would be about $10,000.
It is submitted that the Court should have regard to the conduct of the Applicant in the proceedings, which has included considerable delay and many Court events for which the Applicant is entirely responsible. In terms of the Applicant’s financial position it is submitted that it appears the mother is suing the State of Country B for compensation in relation to the Country B proceedings, which compensation, if she is successful, will be available to her.
The Applicant opposes a costs order being made and submits that the financial hardship if she is required to pay will bankrupt her to the extent that she will not be able to pay the contact centre costs, which will have an adverse impact upon the child.
The Law & Discussion
Applications for costs in this Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to the discretion afforded to the trial Judge in subsection (2), and the Court may make an order for costs if there are circumstances that it is of the opinion justify it in doing so.
The High Court in the matter of Penfold v Penfold[5] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
[5] (1980) 144 CLR 311
Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.In this case, the following matters are relevant and will be considered shortly in these reasons:
(a) The mother’s financial position (subparagraph (a));
(b)The mother’s conduct in relation to the proceedings (subparagraph (c)); and
(c)Whether the mother has been wholly unsuccessful in the proceedings (subparagraph (e)); and
The Court is conscious of the restrictions provided in s 117(4) of the Act that the Court must not make an order against a party in favour of an Independent Children’s Lawyer if the party has received legal aid in the proceedings, or if the Court considers the party “would suffer financial hardship” as a result of an order to bear a proportion of the Independent Children’s Lawyer’s costs. As I understand it the mother is not in receipt of legal aid in these proceedings, and I will deal with the mother’s financial position shortly in these reasons.
In respect of indemnity costs, the law is well settled, and the relevant principles are those set out in the Federal Court case of Colgate-Palmolive Company v Cussons Pty Limited[6] where Sheppard J provides examples where the exercise of discretion to award indemnity costs is warranted, including:
(a) false and irrelevant allegations of fraud;
(b)misconduct that causes a loss of time to the Court and other parties;
(c) where the proceedings were commenced or continued for an ulterior motive;
(d) the undue prolongation of a case; or
(e) wilful disregard of known facts and clearly established law.
[6] (1993) 46 FCR 225
The categories of cases in which an award of indemnity costs may be appropriate is not, however, closed. The Full Court in Yunghanns & Ors & Yunghanns & Ors & Yunghanns[7] observed at [31]:
It will suffice it to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against whom such an order is sought.
[7] (2000) FLC 93-029
In the recent Full Court of the Family Court decision of Joyce & Fante[8] dealing with the issue of indemnity costs, Bryant CJ stated at [11]:
… In short, it is beyond doubt that in order to justify an award of indemnity costs, it must be demonstrated there are exceptional circumstances such that the usual order of party-party costs should be departed from.
[8] [2013] FamCAFC 141
The same considerations in respect of s 117(2A) apply in considering whether a costs order should be made, and whether it should be made on an indemnity basis.
I therefore turn to the relevant s 117(2A) factors indicated above.
I have had regard to the evidence of the mother about her current employment and financial circumstances, and do not accept her submission that the making of such an order would have the adverse effect that she contends in light of her income. The father has had to pay considerable costs in response to the application.
There has been considerable delay in these proceedings, which were commenced in October 2010. Previous hearing dates were vacated and, at a number of Court events, it appeared to be accepted by the mother that a further report of Dr Q would be required. The mother initially agreed and there was further delay waiting for the return of Dr Q from leave, but when the doctor returned, there were further delays as the mother did not make arrangements to see the doctor and ultimately after an appointment was arranged many months later, it was cancelled by the mother.
The Applicant has been wholly unsuccessful in the proceedings and has not demonstrated a change in circumstance that was required for a fresh hearing. It appeared that the mother previously understood and accepted that the significant issue in respect of which she would be required to demonstrate change was in relation to her treatment for the personality disorder. However, she continues to contend and obtain evidence to support the contention that the doctor’s original diagnosis was incorrect, notwithstanding that this issue was fully explored and rejected at the hearing.
Balancing these matters, I am satisfied that there are circumstances justifying the making of a costs order against the mother as sought by the Independent Children’s Lawyer in the sum of $3,988, being an amount calculated at a legal aid rate. I am of the view that two months would be an appropriate timeframe in which to pay the amount.
As to whether in all the circumstances of this case it is just for the father to be awarded costs of and incidental to these proceedings on an indemnity basis, I have taken into account that it is, as the Full Court in Kohan & Kohan[9] said, a “very great departure from the normal standard”. In that case, their Honours said that:
… the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale and what its likely impact will be on the financial position of each of the parties … The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.
[9] (1993) FLC 92-340
Rule 19.34(2) of the Family Law Rules 2004 (Cth) provides that if a Court orders costs be paid on an indemnity basis, those costs must be “reasonably incurred” and of a “reasonable amount” having regard to the scale of costs set out in Schedule 3, any costs agreement between the party to whom costs are payable and that party’s lawyer, and charges ordinarily payable by a client to a lawyer for work.
Further, Rule 19.18 provides for the method of calculation of costs, including on a particular basis such as on an indemnity basis. Subparagraph (3) provides that:
(3) In making an order under subrule (1), the court may consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party's behaviour in the case;
(c) the rates ordinarily payable to lawyers in comparable cases;
(d) whether a lawyer's conduct has been improper or unreasonable;
(e) the time properly spent on the case, or in complying with pre-action procedures; and
(f) expenses properly paid or payable.
Rule 19.08(3) also provides that a party seeking costs on an indemnity basis must inform the Court if the party is bound by a costs agreement in relation to those costs, and if so, the terms of the agreement.
As noted above, the father’s legal representatives have provided the necessary details to enable an assessment of the reasonableness of the legal costs incurred by the father in responding to the mother’s application since 12 October 2012.
His solicitor’s hourly rate appears reasonable in light of her expertise and having reference to Part 1 of Schedule 3. Similarly, the disbursements incurred by his solicitors appear to be reasonably incurred and in a reasonable amount having regard to the same Part of the Schedule.
An estimate of counsel’s fees has been provided. Whilst there was no breakdown in respect of counsel’s fees, having regard to Part 2 of Schedule 3, the estimate of fees for preparation and the hearing appeared reasonable, and at the lower to middle range of the scale. It is also of note that, whilst the father would be entitled to have had solicitor instructing counsel at the hearing, counsel appeared without an instructing solicitor thereby reducing the costs involved in presenting the father’s case at hearing.
In exercising my discretion, I have regard to the matters I have outlined above, in particular the mother’s conduct in delaying the proceedings and not obtaining the medical evidence that it appeared she agreed was necessary for the Court to reconsider the child’s parenting arrangements afresh. As she has been wholly unsuccessful in these proceedings, I am satisfied that an order for costs on an indemnity basis is just. But for the mother’s conduct in this regard, the father would not have incurred the costs that he has.
In the event that the parties are unable to reach agreement on the exact sum the mother is to pay the father on an indemnity basis, it will be a matter for the Assessing Officer to determine what costs have been reasonably incurred since 12 October 2012 and are payable by the mother.
As to timeframe in which the mother is to pay such a costs order, I am of the view that six months would be appropriate in the event of an agreed sum, or within three months of the date of assessment. These seem appropriate timeframes having regard to my determination that the mother is to also pay the Independent Children’s Lawyer’s costs.
The orders that I make are as set out at the forefront of these reasons for Judgment.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 24 January 2014.
Legal Associate:
Date: 24 January 2014
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Costs
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Procedural Fairness
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