B and R
[2002] FMCAfam 174
•1 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & R | [2002] FMCAfam 174 |
| FAMILY LAW – Children – contact – application to have additional contact – final orders for contact operative – court satisfied that there has been a significant change in the child’s circumstances – application for additional contact refused – costs order made in favour of Respondent. |
| Applicant: | M L B |
| Respondent: | B R |
| File No: | PAM798 of 2002 |
| Delivered on: | 1 May 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 1 May 2002 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Applicant in Person: | Mr M. B 2/63 O Street E NSW 2121 |
| Solicitor Advocate for the Respondent: | Mr M. Shepherd |
| Solicitors for the Respondent: | Heazlewoods Solicitors DX 4411 EPPING |
ORDERS:
That the father's application filed 29 January 2002 is dismissed.
That the applicant pay the respondent's costs in the sum of $1,365.00 which are to be paid by 1 May 2003
That all outstanding applications are otherwise dismissed.
FEDERAL MAGISTRATES |
PAM798 of 2002
| M L B |
Applicant
And
| B R |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally on 1 May 2002.
The application
M B (“the father”) filed an Application on 29 January 2002 in the Family Court seeking parenting orders. The proceedings relate to the parties' only son, A. A was born on 28 June 1992.
B R (“the mother”) filed her response on 26 February 2002. That day the Family Court transferred the proceedings to the Federal Magistrates Court.
Ultimately, the issues that have engaged the Court today are different to those contained in the initiating application. The father outlined at the commencement of these proceedings today the orders he sought at trial. In essence they are these:
·That he have contact to A from after school on Monday, Tuesday and Wednesday afternoons and have him in his care until about 5.30 pm.
·That A should be allowed to visit his father at any reasonable time.
·That A should be able to telephone his father more frequently than Monday and Wednesday each week.
·That Orders 7(a) and 7(b) made in the Family Court on 21 December 2000 be discharged.
The mother submits to the Court that the father's application should be dismissed. It is submitted by her that he does not show a sufficient change in circumstances that would entitle him and the Court to look afresh at the arrangements made for A in terms of his contact with his father. In the alternative, if the Court does not favour that submission, she proposes that the application be dismissed on its merit. The third alternative is otherwise that orders be made as contained in her case outline document. This would restructure contact so that it takes place each alternate weekend extending from the Sunday evening when it currently ends, until Monday morning or Tuesday if it is a public holiday. Thursday evening contact which now takes place pursuant to the Orders of 21 December 2000 would stop. The alternative positions are argued in descending order of priority. Thus if the mother succeeds on her primary argument, the second – or third if the second is also unsuccessful - proposals are not pressed
The evidence
The father’s evidence comprised the following:
·His affidavit sworn in support of his application for Interim Orders.
·His affidavit of 19 April 2002 and his oral testimony.
·Affidavit of his son J B, sworn on 19 April 2002. J B was not cross-examined and I accept his evidence that relates to factual matters.
The mother’s evidence comprised the following:
·The mother's affidavit sworn 23 April 2002 and her oral testimony.
·Affidavit of G H sworn 23 April 2002 and his oral testimony.
·A's 2001 workbook became an exhibit.
Ultimately I was satisfied that all witnesses gave truthful accounts of events as they see them. They tried to the best of their ability to be honest and to meet their responsibility to the Court with integrity. They are to be complimented for that. Where there are differences in their evidence it seems to me that the differences were primarily matters of perspective rather than significant factual disagreement. There are simple examples which highlight that this is so.
Mr H was cross-examined in relation to his evidence that the father pounded on the glass door at the mother’s home in an aggressive fashion. Mr H was clear that he was describing that when the father returns the child he knocks on the glass door and he bangs loudly. He perceives, as a bystander to these events, that it is quite an aggressive banging on the door. The father denies that his behaviour is aggressive and sought to test this description by reference to experiences that Mr H may have in the course of his employment with the police force. It was an approach that was deceptively simple. Context is relevant. Undoubtedly Mr H has experienced more aggressive and outrageous behaviour in the course of his work. This does not undermine his description of the father's behaviour when the child is returned from contact. The father, from his own perspective, does not bang loudly. From Mr H's perspective he does bang loudly. It is simply a difference based on perspective and perception.
Similarly, Mr H[1] recounts a conversation with Mr B when they first met. The distinction between the approaches taken by the two witnesses is essentially this: Mr H focuses on the words spoken by Mr B; Mr B focused on the fact that when those words were spoken the two men were shaking hands. The words spoken legitimately entitled Mr H to conclude that Mr B’s attitude towards him was not friendly. In fact it was a quite aggressive one. That opinion is not undermined by the fact that the two men were shaking hands. However, that they were shaking hands suggests that one should not over emphasise the words that were used. Again, the approach taken by both parties to the incident is legitimate. However, it underscores a theme that developed throughout the entirety of these proceedings just how their perspective’s and attitudes differ.
[1] Mr H’s affidavit paragraph 6
The background facts
Because the issues are quite contained the relevant factual matters are few.
The parties commenced cohabitation about April 1988. The father has two children by a former relationship, P and J. Those children live with him and they formed part of these parties’ family. J and P's mother lives in Queensland.
The parties married on 2 September 1989. A was born on 28 June 1992.
In 1997, the parties moved to Sawtell.
In January 1998, A started school at Coffs Harbour Primary School. At that time, both parents were working and it was necessary for arrangements to be made for A to attend after school care. He attended 3 to 5 days a week depending upon the mother’s work roster. Throughout the entirety of his school life he has continued after school care.
The parties separated in June 1998. Their separation was precipitated by a serious assault by the father on the mother. The father makes no meaningful challenge to the mother’s evidence about the circumstances and gravity of the incident. I accept the evidence contained in Annexure A to her affidavit and her evidence generally about this incident. Thus I am satisfied that all three children were involved in it. As a result of the assault the father was charged with assault occasioning actual bodily harm and intimidation. He plead guilty to both charges. A twelve-month apprehended domestic violence order was made at the same time for the mother’s protection. The father challenges the mother’s evidence that she distrusts him and is afraid of him. I formed the view that while he has an intellectual understanding about the effect of this of the mother, he does not accept the reality of it. He appeared quite desensitised to the effect on her of what he did to her. I accept that she is still cautious around him and is vigilant for any signs that he might behave aggressively towards her.
After separation the mother, A and P returned to reside in Sydney. They came to Sydney towards the end of 1998. Mr B remained living in Coffs Harbour attempting to establish a business. He had finished his career with the police force after the assault. In 1999, A commenced Year 1 at North E Primary School which school he still attends. In May 2000, the mother established a defacto relationship with G H. Mr H moved into her home. At that time A and P were still living with her. It is not clear to me but it seems likely that Mr H’s daughter E also joined the mother's home at that time.
In May 2000, Mr B returned to live in Sydney. There were proceedings between the parties that redefined the arrangements for contact between the father and A. The father had diligently maintained his relationship with A, travelling the long distance between Coffs Harbour and Sydney as regularly as he could. Neither parent makes any complaint about the nature of contact, its frequency or the commitment that both made to it during the period that Mr B remained in Coffs Harbour and Ms R was in Sydney.
On 9 June 2000, interim orders were made after a short hearing. These orders changed the nature of contact to the extent that after school contact started. The interim orders are set out below.
Pending Further Order
1.That the child A S B B born 27 June 1992 reside with the mother and that she have day to day responsibility for the said child’s care.
2.That the father have contact with the said child as follows:
(a)On alternate weekends from after school on Friday to 6pm on Sundays.
(b)On each Monday from after school until 5.30pm, and
(c)Otherwise as set in paragraphs 2(b), (c), (d), (e), (f) and (g) of the mother’s From 8 application filed herein and attached hereto.
3.That the father is to collect the said child from school or the mother’s residence before contact and return the said child to the mother’s residence at the conclusion of contact
4.That the mother is to ensure that the said child telephones his father 3 times per week between 7 and 8pm and that such telephone conversation to be for not more than 15 minutes on each occasion.
5.That other than to collect the child for contact the father be restrained from attending the said child’s school and at such places as the said child may be attending before school care and at such places as the said child may be attending after school care and that he be restrained from contacting the said child at his school and at the before and after school care facilities attended by the said child except to attend school prize giving’s, concerts plays and sporting events to which parents are invited.
6.That subject to anything to the contrary herein contained and except in the case of emergency that the father be restrained from telephoning the mother, the children P and A or the mother’s home.
Current orders
Those Orders were implemented until Final Orders were made on
21 December 2000. The Orders were entered by consent. They are as set out below.
1.That the child A S B B born on 28th June 1992 (hereinafter referred to as “the child”) reside with the mother and that she have day to day responsibility for the child.
2.That the parties have joint parenting responsibilities for the child.
3.That the father have contact with the child as follows:
(a)During school term, on alternate weekends from the time or times at which the child finishes his school activities on Friday afternoons to 8.00pm on Sunday, the first of such weekends to commence on Friday the 9th February 2001.
(b)During school term, on alternate Friday afternoons (not being those referred to in Order 2a above) from time or times at which the child finishes his school activities until 5.30pm
(c)During school term on Thursdays from the time or times at which the child finishes his school activities until 8.30pm.
(d)During the second half of all school holidays (school holidays for the purpose of these orders being deemed to commence at 3.25pm on the last school day of the preceding school term and being deemed to finish at 7.00pm on the day preceding the first school day of the next term.
(e)Notwithstanding the foregoing, the father is not to have contact with the child on the first weekend after the commencement of school term after the Christmas and July school holidays. After completion of the Easter and October school holidays, the father’s contact shall recommence on the first weekend after the commencement of the new school terms.
(f)On Christmas Days from 4.00pm to 10.00am on 26th December.
(g)On Father’s Day, when it falls during a non-contact weekend, from 9.00am to 6.00pm
(h)On Mother’s day, if it falls during a contact weekend up to 9.00am on Mother’s Day at which time the father shall return the child to the mother.
(i)On the child’s birthday from 3.30pm to 6.30pm unless the child’s birthday occurs during a contact period in which case the father will return the child to the mother at 3.30pm and collect the child again at 6.30pm
4.The Father shall collect the child at the commencement of contact from the child’s school during school term and from the mother’s home or the home of the child’s maternal grandparents during school holiday periods and shall return the child at the conclusion of contact to the child’s mother’s home or the home of the child’s maternal grandparents.
5.The mother shall not enrol the child in any activity that may encroach upon the father’s contact time with the child unless mutually agreed to the contrary between the mother and the father.
6.
(a) That the mother take all reasonable steps to ensure
that the child telephone the father on Mondays and
Wednesdays between the hours of 7.00pm and 8.00pm
and that the child be at liberty to telephone the father
at any other reasonable time.
(b)That the duration of such telephone calls not exceed 15 minutes each.
(c)That the father not telephone the mother’s residence except in the case of emergency.
7.The father shall not –
(a)Attend any school at which A is a pupil or any before school or after school child care facility which the child attends (including the child’s maternal grandparents’ home) except to collect the child for contact or in the case of an emergency or to attend the child’s school prize givings, school concerts and plays and school sporting events to which parents are invited.
(b)Attend any activities of the child other than weekend sporting events in which the child competes with other children and to which the parents of the competing children are invited and non-sporting activities in which the child takes part in performances (as distinct from classes, practice or training) to which the parents of the performing children are invited.
8.That the father and the mother be restrained from making derogatory, critical or disparaging remarks about each other or about the parents of the other in the presence or hearing of the child.
9.That the father and the mother be restrained from swearing and from using bad language in the presence or the hearing of the child.
10.That the mother and father be restrained from entering each other’s residence without the prior approval of the other.
11.That the father and the mother be restrained from permitting the child to hear or see any cinema movie, video or television program other than those that are classified G or PG with the exception of M rated movies, videos and television programs that the father and mother may agree are inappropriate for the child to see.
12.That the father and the mother be restrained from removing the child from the Commonwealth of Australia without the prior written consent of the other.
13.That the mother’s Form 49 application herein be dismissed with no order as to costs.
14.NOTED the father’s undertaking to the Court and to the mother not to consume alcohol while he is having contact with the child and for the twelve hour period immediately preceding any such contact.
The consent orders have been registered in the Federal Magistrates Court and thus the Court has jurisdiction to vary or amend them.
In August 2001, the father moved to 2/63 O Street, E. This means that he now lives only about a five minute walk from the mother’s home. About one month later, P left the mother’s home and returned to live with her father and brother.
The application and proposals made by the father are as set out earlier in these reasons. The effect of his application would be that A would have the opportunity to spend more time with P and J and himself. P works and studies in total about six days a week. J is a full time long distance student at University of New England. He works two days each week at a pizzeria at Parramatta. The father agrees that, in relation to P, the additional time A would have with her would probably be no more than about half an hour to an hour on some Mondays. It is likely to be more substantial in relation to J. Certainly, the father would have about six hours per week additional contact. The father works part time. His employment is deliberately structured around his desire to be available to care for A. He pays $40 per month child support an amount that, although it is calculated in accordance with the Child Support Formula, is manifestly inadequate when compared to the needs the child has for financial support from both of his parents.
The mother lives with G H at 61 N Road, E. They are both in the NSW Police force. Mr H's 15-year-old daughter E lives with them. A, his younger daughter, who is aged 11, lives with her mother at Mount Colah. A exercises alternate weekend contact to her father. She forms part of A's life during those periods of contact.
On 9 June 2002, the mother and her family must vacate their home. The Roads and Transport Authority have resumed it. She will continue to live in the local area. Hence there will be no need for A to change his school. Her work commitments have meant that A must be placed in after school care at least three afternoons a week. Until recently, his maternal grandparents cared for him on Monday afternoons. However, because the maternal grandmother is ill, after school care has been extended so it now takes place on Monday, Tuesday and Wednesday. There was a short period where friends of the mother cared for A on Mondays until, I assume, a place became available in the after school care facility. The father has contact to A after school on Thursday and each alternate Friday until 5.30pm. On each alternate Friday alternate weekend contact starts. Thus the father in fact has contact every Friday. The father is very critical of the mother because she did not ask him first to care for A on Monday evenings - a criticism I do not share.
The issues
The issues in the proceedings have been these. Has there been a change in circumstances of the type described in Rice & Asplund (1979) FLC 90-725 and King & Finnernan (2001) FLC 93-079. If there has been what is the benefit to A in making or refusing the application made by his father? It is important to understand that there is no issue about whether the care proposed by the father is superior or inherently lesser than that provided at after school care. This is because both parties agree that the standard of care provided by after school care is completely appropriate.
Relevant law
The law in relation to parenting matters is quite clear. It is that a Court's responsibility is to ensure that any parenting order it makes is an order that promotes the best interests of the child. That is often referred to as the "paramountcy principle". I have no doubt that the application made by the father attracts the operation of the principle. The rule in Rice & Asplund (supra) is often described as a threshold issue that requires that an applicant for parenting orders to show that there has been a substantial change in circumstances since the earlier order. It is perhaps a specific application of the paramountcy principle designed to ensure that children and their parents are not subjected unnecessarily to the strains and stresses of continuous litigation. That is to say, in particular circumstances, s68F(2)(k) is the subsection that must carry greatest weight.
In Bennett & Bennett (1991) FLC 90-725, the Full Court of the Family Court emphasised that it is a matter for the individual judicial officer’s discretion to determine how it is that the threshold issue should be adjudicated. From the time these proceedings were transferred to this court, they have been listed in my docket. Prior to the trial I directed that the matter be prepared on the basis that any threshold issue would be determined within the context of the entirety of the evidence. That is to say I declined to list the proceedings for a discrete hearing of the threshold issue. Having proceeded that way, I am in an ideal position to consider the threshold issue within the context of the entirety of the evidence relied on in the substantive application for parenting orders.
I turn to answer the question posed by the mother about whether or not there has been a substantial change in the child's circumstances. The answer to that question in the circumstances of this case is yes, there has been. The changes in circumstances made out by the father are relevant and have an obvious nexus to the application that he makes. The first change is that he now lives a matter of minutes away from the child's school and the child's home. Thus, he is in a position that he has not been in before whereby he lives in close proximity to the child and is at least physically able to implement a shared after school care arrangement. The other factor that is significant is that all of A's half-siblings now live in their father's care. The proposals made by the father would afford the child a greater opportunity to some degree for more time with both of his half siblings.
Generally, I am of the view that if a court can determine a matter on its merits without putting the parties to additional expense, financially or personally, it should do so. Because the evidence in this matter is quite contained, I am, in any event, able to consider the application on its merits. Without putting the parties to extra expense or extra stress, I can adjudicate this matter by reference to s68F(2) and s60B. I will address only those subsections that are relevant.
Determining the child’s best interests
Firstly, I look to A's wishes. The evidence is that the mother has deliberately not discussed the father's application or the issues that arise from it with the child. I accept her evidence that it is likely that A is aware of the proceedings and has been aware since at least December 2001 that his father was planning to bring this action. The mother's approach has been a sensitive and child-focused one. Her decision not to discuss the issues with A is one that should not be criticised. I do not infer that she did not do so for fear that the child may tell her he wants to spend more time with his father. There is no doubt that A loves his father, his brother and his sister and he is delighted to spend time with them. Not only was this clear from the father’s evidence, it was implicit in the evidence that the mother gave.
It is commonly understood that children often tell a person whom they love what they perceive that person wants to hear. I have no doubt that A has told his father that he wants to take up the offer to spend time with him and his siblings after school. I accept that he has not said any such thing to his mother. It seems more likely that if A did have a burning desire to have this extra time with his father, as his father attests, that there would have been something said to this effect by A to his mother. This is because he has a good relationship with her and in her care has extensive contact with his father.
A is a nine-year-old boy of apparently age appropriate maturity. There is no evidence that suggests otherwise. He has said he would enjoy extra time with his father in accordance with the structure for extra contact proposed by his father. I am not satisfied that his desire to do so is so strongly held that it should carry greater weight than other matters more relevant to his welfare. I am satisfied on balance that the child wishes to spend extra time with his father, a factor that must be given proper weight in the decision that I make.
I next look at the nature of the child's relationships. A has lived with his mother all of his life. I am satisfied that she is his prime caregiver and the person to whom he has his primary attachment. From his mother he obtains his fundamental sense of security and stability. He loves her and is loved dearly in return. Clearly he loves his father and is deeply attached to him. His relationship with his father is undoubtedly fundamentally important to him. Including his father in his life in a meaningful way is essential to A's sense of wellbeing and happiness. The same conclusions apply to his relationship with his brother and sister. His relationship with his father and siblings is sufficiently secure that the extra hours of contact proposed by the father are unlikely to make any difference to its quality.
The mother’s life is changing. G H and his daughter E form an integral part of her recently formed family. The process of blending families is a complex one. It takes time, commitment, and support from the adults if children are to be able to manage it reasonably smoothly. I accept the evidence given by Mr H in paragraphs 8(a), (b), (c) and (d) of his affidavit. Thus, I am satisfied that after periods of contact with his father, A is unsettled and disruptive in the home. His otherwise comfortable relationship with Mr H is set back after periods of contact. It seems clear to me, and I am satisfied it is the case, that after contact the smooth flow of relationships that have been established in the mother's home are undermined. This finding is not in critical of the father. He denies that he has said anything to A that accords with the statements A has attributed to him. Nonetheless, A may believe that this type of critical message is the message he picks up from his father. Many children find it difficult to manage the complex relationships that can arise when marriages fail. Attributing critical comments to one or other parent about the other is a strategy frequently employed by children who feel caught in the middle of their parents dispute. That is probably what has occurred here.
There are obvious tensions between these parties. Ms R is more sensitively attuned to them than is Mr B. As a consequence they impact more on her than they do on him. Of course I must look at the situation from A's perspective.
I am satisfied that A has a pleasant relationship with Mr H, E and A. His relationship with Mr H is one that is valuable to him. Mr H forms part of the child’s daily life. For a child to live in a home where relationships are regularly disrupted the effect in the short term and the long term is potentially damaging psychologically. It certainly limits the capacity for a secure and settled home life. This is an important factor that I place considerable weight on.
The obvious advantage to the child of the father's application is that it will increase the time he has with his father, brother and to a small extent, his sister. This is time that he would otherwise spend with friends but not with members of his family.
A probably does not appreciate the effect of his own unsettled behaviour on others and on his place in his home. I did not form the view that Mr B understood to the degree that he needs to, the effect of A being unsettled, disruptive and the like in his mother's home. It undoubtedly makes her task of parenting A more complicated and almost inevitably introduces tensions into her relationship with the child. Unless there is good reason for doing so associated with the child interests, I am satisfied that I should not take a course that would inject an increased level of unsettled behaviour into the child's life with his mother. The mother's case is that making the changes proposed by Mr B is simply too much to ask of her and A because of the tensions that exist between the adults and the effect that A moving backwards and forwards between the homes virtually every school day will have. I agree.
The parties obviously have a different approach to A's care. The father impressed me as a man who is more free and easy and has a liberal, laissez faire approach to parenting. It is a parenting style that has many attractions. The mother is more concerned with routine and with structure - the type of concerns that, as a single working parent, she has probably had to grapple with for quite a number of years. Her approach also has its obvious attractions and is no less responsible than the father’s approach. The reality is that the two approaches taken by the parents are different. The father has, because of his disagreement with some of the boundaries established by the mother, decided to push them. An obvious example of this is his insistence on taking J to the mother’s home at the end of contact. I do not see an advantage to A because he spends an extra five minutes walking with J to his mother's home in circumstances where the relationship between J and the mother is obviously conflicted and unhappy. She has asked that J not attend her home. The father ought to respect this. Another example is the uncontroverted evidence that her requests to change weekend arrangements so that A could attend some social and music functions have been refused by the father. It seems more likely that in his mother's care A has the opportunity for social and extra curricula activities. This broadens his life beyond his family. He has greater opportunities to do so, it appears, in his mother’s care than in his father's. These are important opportunities for a child if the child is to achieve social and personal independence as they grow. Family is fundamental but it could not be said that it is absolutely everything.
Conclusion
Ultimately, I am satisfied that there are, as was outlined during submissions, "emotional factions". This is a phrase I have not heard before, but one that seems to describe well A's circumstances. His father's and mother's homes are not emotionally compatible. A is, to a considerable degree, caught between these two different environments. He manages to move between those two environments in a way which does not seriously undermine his adjustment. I am concerned and satisfied that it is likely to be the case that more frequent moves between those two environments may well and probably will, exacerbate the tensions between the parents and make the child's capacity to adjust between the two homes simply too complicated. Ultimately, in the long term, his own adjustment will deteriorate. His relationship with his father and siblings is secure and will not be undermined if the current arrangements for contact are not expanded upon. He has friends at after school care and has an enjoyable time there. On balance, I am satisfied that the current arrangements should continue.
The outcome of this is that I am satisfied that the father's application should be dismissed on its merits. The Orders will then be the Orders that were entered on 21 December 2000. This means that A will continue to have regular alternate weekend contact with his father. He will see his father on Thursdays and have the telephone contact and other contact that the Orders provide for. The father will need to respect the arrangements that the mother has in place for the child and maintain his and his children’s relationships within the time ordered for contact. This is an outcome that I am satisfied, in the particular circumstances of this case, is in the best interests of the child.
Costs
The respondent has made an application that the applicant pay her costs. Ordinarily, pursuant to s117(1), each party to proceedings under the Family Law Act shall bear his or her own costs. If the Court is of the opinion that there are circumstances that justify it in doing so the Court may make such orders for costs as it considers just. Sub-section 117(2A) identifies the factors that the Court must consider when determining an application for costs.
Sub-section (a) relates to the financial circumstances of the parties to the proceedings. There is no doubt that the respondent's financial circumstances are manifestly superior to the applicant's. The applicant is in receipt of Centrelink benefits and some income from part-time employment. The operation of the Child Support Assessment Act, a formula that is income based, has resulted in a payment by the Applicant to the Respondent of only $40 per month. This corroborates his submission that the Respondent's circumstances are superior to his. Sub-section (a) favours the Applicant.
Sub-section (b) does not apply .
Sub-section (c) does not apply.
Sub-section (d) does not apply.
Sub-section (e) is the lynchpin of the Respondent's application. That is that the Applicant has been wholly unsuccessful in the proceedings. The operation of the sub-section favours the Respondent.
Sub-section (f) does not apply.
Sub-section (g). By letter dated 17 April 2002 from the respondent's solicitor to the Applicant[2], the Respondent reinforced with the Applicant that she sought to have his Application dismissed. He knew that from that point, reinforcing what was already contained in her Response, that she sought her costs in the proceedings. With that knowledge, the Applicant chose to proceed.
[2] Exhibit B
As I have indicated, the Full Court of the Family Court (see In the Marriage of I and I (No 2) 22 FLR 557) has said that a Court should not take a different approach in the adjudication of a costs application in children's matters as compared to financial matters. The Applicant has presented his own case today competently and with obvious ability. I accept that he is well motivated and had his perception of A's best interests at the forefront of his thinking when he made this application. Parenting orders, however, are not issues that are at large. So too the exercise of my discretion in relation to the cost application is not an unfettered discretion. I must apply the provisions of the Act to which I have already referred. Equally when a person approaches a Court, they must have regard to the operation of law that the Court is required to apply. It is one thing to be well motivated, it is another to bring a successful Application. The Application made by the applicant has been wholly unsuccessful.
I have found dealing with the application for costs a surprisingly difficult issue. There is much force in what Mr Shepherd has to say, in essence, to rhetorically paraphrase his submission, why should his client bear any costs associated with resisting an Application that ultimately failed? That is a relevant and hard question. There is similarly great force in what Mr B submits. His application was not an untenable one. In essence he asks the court to consider the message it sends to parents who have a legitimate issue and interest in their child if as a result of bringing their Application they are subject to financial penalty. I have taken those submissions into account and ultimately come to a view which is a compromise between the positions taken by both of the parties. The Applicant should pay a portion of the Respondent’s costs. Were he in a better financial position I may have ordered that he pay a greater sum than will be ordered.
The application for costs amounts to some $5,630. In the circumstances of this case, an order of that magnitude against the Applicant would be financially crippling. It is not an outcome that would be a just one. Nor is it a just outcome to require the Respondent to carry the entire financial burden that she has legitimately incurred for her representation. The Applicant will be ordered to pay an amount towards the Respondent's costs, which will reflect the costs of today's hearing, that is the hearing component alone. That amount is $1,635.
I intend, in the circumstances of the Applicant's financial position, to give him time to pay that amount and I had in mind that he would pay the amount within four months. Having heard further from the applicant, I will order that the costs order be complied with within one year. Thus he will have sufficient time to save the amount payable.
For these reasons, I make the orders identified at the start of this judgment.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date:
0
0
0