BROWN & ORTEGA
[2014] FCCA 2339
•3 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BROWN & ORTEGA | [2014] FCCA 2339 |
| Catchwords: COSTS – Order for costs – costs of the Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 117, 121 |
| Cases cited: Brown & Ortega [2012] FMCAfam 1455 Brown & Ortega [2013] FMCAfam 238 Brown & Ortega [2013] FCCA 845 Brown & Ortega [2013] FCCA 1362 |
| Applicant: | MR BROWN |
| Respondent: | MS ORTEGA |
| File Number: | SYC 1704 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 13-15 March, 12-13 September, 1 & 4 October 2013 |
| Date of Last Submission: | 7 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Paltos Briggs Family Lawyers |
| The Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Mr Ladopoulos |
| Solicitors for the Independent Children's Lawyer: | Mr Christaki, Legal aid NSW |
ORDERS
All earlier parenting Orders are discharged.
The Applicant Father is to have sole parental responsibility for the child X born (omitted) 2004.
The Father must:
(a)notify the Mother of any proposed decision relating to the long term care, welfare and development of the child X and the reasons for the proposal, such notification to be given in writing at least one (1) month before a final decision being made;
(b)take into consideration any views expressed by the Mother about the proposed decision; and
(c)inform the Mother of his decision in writing.
The child X born (omitted) 2004 is to live with the Father with effect from Monday 6 October 2014.
Unless otherwise agreed by the Mother and Father in writing, the child X is to spend time with the Mother as follows:
(a)During the school term:
(i)In 2014 each alternate weekend from immediately after school on Friday until the commencement of school on Monday, commencing on 14 November 2014;
(ii)In 2015 and all odd-numbered years thereafter each alternate weekend from immediately after school on Friday until the commencement of school on Monday PROVIDED THAT if the Monday is a public holiday until the commencement of school on Tuesday, commencing on the first weekend of the school term; and
(iii)In 2016 and all even-numbered years thereafter each alternate weekend from immediately after school on Friday until the commencement of school on Monday PROVIDED THAT if the Monday is a public holiday until the commencement of school on Tuesday, commencing on the second weekend of the school term;
(b)During the school holiday periods at the end of the first, second and third terms in each year, unless otherwise agreed between the mother and father in writing, as follows:
(i)In 2014 and all even-numbered years thereafter from 6:00 pm on the second Saturday of the school holiday period until the commencement of school on the first school day of the next school term; and
(ii)In 2015 and all odd-numbered years thereafter from immediately after school on the last day of the school term until 6:00 pm on the second Saturday of the school holiday period;
(c)During the Christmas/January school holidays:
(i)In 2014 and all even-numbered years thereafter from 6:00pm on 10 January the following year until the commencement of the first day of the first school term; and
(ii)In 2015 and all odd-numbered years thereafter from 6:00pm on the day following the last day of the fourth school term until 6:00pm on 10 January the following year.
(d)On the weekend during which Mother’s Day falls from immediately after school on the Friday until the commencement of school on the Monday; and
(e)Such other times if any as the Mother and Father may agree in writing.
The child X’s time with the Mother as provided by Order (5) above is to be suspended on the weekend that includes Father’s Day in each year.
For the purposes of these Orders, unless otherwise agreed between the Mother and the Father, changeovers are to occur:
(a)at the child’s school if the changeover occurs on a school day; or
(b)at the McDonald’s Family Restaurant at (omitted) if the changeover occurs on a day that is not a school day.
The child X is to communicate with the Mother:
(a)by telephone between 7:30pm and 8:00pm every Thursday and Sunday that the child is not spending time with the Mother, and the Mother is to call the child on the child’s mobile telephone or the Father’s landline telephone and the Father must take all reasonable steps to ensure that the child is available to answer the Mother’s call; and
(b)by any other electronic means utilised by the child including but not limited to email, SMS text message or internet based communication.
The child X is to communicate with the Father:
(a)by telephone between 7:30pm and 8:00pm every Thursday and Sunday that the child is not in the care of the Father, and the Father is to call the child on the child’s mobile telephone or the Mother’s landline telephone and the Mother must take all reasonable steps to ensure that the child is available to answer the Father’s call; and
(b)by any other electronic means utilised by the child including but not limited to email, SMS text message or internet based communication.
The Mother and Father must ensure that the child is at liberty to telephone or communicate with the other parent by any other electronic means at such other reasonable times as the child wishes to do so.
Within fourteen (14) days of the date of these Orders, the Mother and Father must telephone Unifam – Head Office to make arrangements for the child and if required for themselves to participate in the Anchor Program at (omitted) and the parties are to pay the costs of the Anchor Program in equal shares.
The Mother and Father must facilitate the child’s attendance at the Anchor Program at such times and places as may be arranged by employees of that service from time to time.
The parties have leave to provide to Unifam a copy of the report of the Court Expert Dr C for the purpose of the child participating in the Anchor Program.
The parties must attend upon the Anchor Program from time to time as may be directed by employees of that service for the purpose of working with the Mother and Father with regard to issues relating to the child including but not limited to co-parenting, improving communication skills and supporting the child in relation to any issue that may arise and the parties must comply with all requests and recommendations of employees of that service.
The Father must:
(a)provide the Mother with and keep the Mother advised of the names and addresses of the child’s treating doctors;
(b)inform the Mother in writing as soon as is practicable of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (hereinafter referred to as “specialist medical consultant”) in relation to the child; and
(c)ensure that the Mother is provided with a copy of any report by any such specialist medical consultant in relation to the child within fourteen (14) days of the father’s receipt of the report.
Both the Mother and the Father are entitled to:
(a)attend any appointment with any treating doctor or specialist medical consultant relating to the child; and
(b)discuss the child’s condition with such treating doctor or specialist medical consultant.
The Father must ensure that the Mother is notified as soon as practicable if, while in his care:
(a)the child is admitted to hospital;
(b)the child is involved in a medical emergency; or
(c)the child will be required to take medication when he spends time with the Mother, in which case the Father must advise the Mother of the details of the medication required to be taken and provide the Mother with sufficient medication to cover the first 72 hours that the child is to spend with the Mother.
The Mother must ensure that the Father is notified as soon as practicable if, while in her care:
(a)the child is admitted to hospital;
(b)the child is involved in a medical emergency; or
(c)the child will be required to take medication when he returns to the Father’s care, in which case the Mother must advise the Father of the details of the medication required to be taken and provide the Father with sufficient medication to cover the first 72 hours following the child’s return to the father’s care.
The Father is to do all acts and sign all documents necessary to authorise any school which the child is attending from time to time to provide the Mother with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues, newsletters, information about school photographs and notices received in relation to functions, parent teacher nights and like activities to which parents of children attending the school are usually invited as well as any information which may be sought from time to time by the Mother in relation to the child.
Both the Mother and the Father are permitted to attend:
(a)any school event relating to the child to which parents are usually invited; and
(b)any of the child’s extracurricular activities.
The Mother and Father must notify each other in writing of any change in telephone contact numbers within three (3) days of any change.
The Mother and Father must notify each other in writing of any proposed change to their place of residence no less than fourteen (14) days prior to the date of the proposed change.
For the purpose of communicating information concerning care of the child or issues relating to parental responsibility between the parents, the mother and the father must:
(a)Communicate by telephone or SMS text message for matters of an urgent nature; and
(b)Otherwise communicate by writing or email.
The Mother and Father are restrained by injunction from:
(a)discussing these proceedings with or in the presence or hearing of the child or permitting any third person to do so; and
(b)speaking about the other parent or the other parent’s family or any member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child or permitting any third person to do so.
The Applicant Father and the Respondent Mother must each pay to Legal Aid New South Wales a contribution to the costs of the Independent Children’s Lawyer and each party must pay to Legal Aid New South Wales the sum of $8,626.55 within two (2) months of the date of these Orders in satisfaction of their respective obligations under this Order.
If either the Applicant or the Respondent seeks an order for costs against the other party he or she must file and serve an Application in a Case and an affidavit setting out the amount of costs sought and the basis upon which that amount of costs is calculated within one (1) month of the date of these Orders.
If either the Applicant or the Respondent files and serves an Application for costs in accordance with the immediately preceding Order then the Respondent or Applicant as the case may be must file and serve a Response to the Application in a Case and an affidavit setting out the basis of their contention that costs should not be payable to the other party within a further period of fourteen (14) days.
IT IS NOTED that publication of this judgment under the pseudonym Brown & Ortega is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1704 of 2011
| MR BROWN |
Applicant
And
| MS ORTEGA |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Father of the parties’ youngest son X for orders that the child live with him. The Application is opposed by the Mother.
X was born on (omitted) 2004 and thus is currently aged 9 years and 11 months. He has been living with the Mother up to this time.
Background
The Father was born on (omitted) 1944. He is now 70 years of age.
The Mother was born on (omitted) 1958. She is 55 years and 11 months old.
The parties did not marry. They commenced living together (omitted) 1991. They separated on or about 13th May 2007 but remained living separately in the former home until the Father left the property in October 2010.
There are four children of the relationship.
Y was born on (omitted) 1992. He is now almost 22 years of age. He was an adult at the commencement of the proceedings.
Z was born on (omitted) 1994. He is now aged 20 years and 5 months.
W was born on (omitted) 1997. He is now 17 years of age.
X was born on (omitted) 2004. He is now 9 years and 11 months old.
The parties had another son who was born in (omitted) 1996 but died two days later.
The Father has three adult children from two previous relationships. They live in Sydney, Melbourne and (country omitted).
The mother has an adult son from a previous relationship.
The Father has re-partnered. He married a lady named Ms W on (omitted) 2011. They live at her residence in the (omitted).
The parties engaged in litigation in the Supreme Court of New South Wales relating to a division of their property under the Property (Relationships) Act 1984 (NSW). That litigation has now been finalised.
After incidents between the Mother and Ms W, a final Apprehended Violence Order was made against the Mother on 17th February 2011. That order remained in force for 12 months.
Procedural History
This matter has had a lengthy history.
The Father filed an Initiating Application on 21st March 2011 in which he sought interim and final orders that:
a)The parties should have equal shared parental responsibility of the children Z, W and X[1];
b)The children should live with the Mother;
c)The children should spend time with the Father:
i)On alternate weekends during the school term;
ii)For half of each of the school holidays;
iii)On Father’s Day and at Christmas.
[1] The parties’ eldest son Y was already an adult at the time the proceedings commenced.
The application was returnable on 20th June 2011.
The Mother attended Court on the return date but had not filed either a Response or an affidavit. Orders were made that:
a)The Mother was to file and serve a Notice of Address for Service within 14 days;
b)The Mother was to file and serve a Response and an affidavit in support within 21 days;
c)The parties were to attend a Child Dispute Conference with a Family Consultant; and
d)The Application was adjourned to 19th July 2011 for mention.
The parties attended the Child Dispute Conference on 12th July 2011. The Family Consultant Memorandum to Court dated the following day reported that:
a)The Father said that he had not seen X since the parties separated in October 2010;
b)The Father said that he had seen the two older boys on two brief occasions since the separation ;
c)The Mother “refused to countenance that the children should spend any time” with the Father;
d)The Mother “did not wish to negotiate” with the Father;
e)The Mother said that the Apprehended Violence Order against her restricted her “potential to facilitate the children having time” with the Father;
f)The Mother believed that the Father was exercising “subliminal mind control” and would influence the children to become like him if they spent time with him;
g)The Mother distrusted the Father and his (then) partner[2];
h)The Mother believed that the children did not wish to spend time with the Father;
i)The Father was concerned that the Mother had mental health difficulties;
j)The Father was concerned that he was being unnecessarily restricted from spending time with the children by the influence of the Mother; and
k)Each parent alleged that financial matters were a factor in the orders that the other parent sought about the children.
[2] Now his wife
The Family Consultant saw no inherent safety concerns with the children spending time with their father and suggested that daytime only contact could commence each week or fortnight, at least with the two older boys.
The Family Consultant also recommended that a specialist report be prepared by a Child and Family Psychiatrist and that an Independent Children’s Lawyer should be appointed.
The Application was mentioned before Federal Magistrate Altobelli[3] on 19th July 2011 (due to my absence in hospital) and his Honour noted that the Mother had not filed a Response or an affidavit as previously directed. His Honour ordered that the children’s interests should be independently represented by a lawyer and directed that the Mother should file and serve a Response and an affidavit in support within 14 days. The Application was adjourned to 12th August 2011 for mention.
[3] As his Honour then was
The Mother filed her Response and an affidavit in support on 2nd August 2011. In her Response the mother sought final orders that:
a)She should have sole parental responsibility for the three children;
b)The children should live with her;
c)The children should spend time with the Father as agreed between the parties and any time that the children requested to do so;
d)That she be free to contact the children and the Father notwithstanding the existence of the Apprehended Violence Order;
e)That the Father keep his telephone switched on and answered when the children were in his care; and
f)That a residential landline telephone be available for communication.
When the Application was mentioned before the Court on 12th August 2011, the Independent Children’s Lawyer attended for the first time. The parties entered into Interim Consent Orders providing that:
a)The parents would have equal shared parental responsibility for the three children;
b)The parents would have sole parental responsibility for the children when the children were in their respective care;
c)The children would live with the Mother;
d)The child X would spend time with the Father from 10:00am to 4:00pm each Saturday;
e)The two older boys Z and W would spend time and communicate with the Father as agreed between the children and the Father;
f)The parents would have due regard to the children’s wishes as to spending time with the Father;
g)The Mother was to actively encourage the children to spend time with the Father;
h)The Mother was to encourage and foster the children’s relationships with the Father;
i)The parties were to attend a parenting after separation course within six months;
j)Within 14 days the mother was to arrange for W to attend on a counsellor or psychologist for counselling regarding spending time with the father;
k)Within 14 days the Mother was to arrange for X to attend on a counsellor or a psychologist regarding spending time, including overnight time, with the Father; and
l)Other ancillary orders.
On 30th November 2011 the Mother filed an Amended Response seeking further orders:
9.That a nominee not be appointed to pick up the children unless it is agreed between the parents;
10.That emails are only to be between Mr Brown and the boys, to prevent the barrage of emails between the parents. Communication to the mother is to be by phone, due to the need for clarity of communication.
11.That X not be allowed to go aboard a yacht while in Mr Brown’s care.
That same day the father filed an Application in a Case seeking a variation of the earlier consent parenting orders of 12th August 2011 to cover time with the child X during December and January 2012, during the school term and for half of the school holidays.
On 26th March 2012 the Court ordered that:
a)Dr C should be appointed as court expert witness to prepare a report on matters relating to the welfare of the three children;
b)The Father was to meet the entire costs of the report at the first instance and the Mother’s contribution should be determined at the final hearing.
Dr C completed his Report on 25th July 2012 and it was released to the parties on 31st July 2012. The Report was disturbing in its content and its conclusions. Dr C’s report contained some 14 recommendations, which are quoted in full:
1.The situation facing these children is fraught and precarious because both parents are extremely problematic as parents. I formed the view that probably the least detrimental alternative would be for X to remain living with W and his mother. He appears to be developing adequately to the present time. It’s likely during his adolescence that there will be major problems and he could follow a similar path to his older brothers and be rejected unless there is a substantial change with the mother or the father.
2.I recommend that there be monthly weekend contact to reduce the travelling of the father and reduce the possible exposure of conflict between the parents. It would be better if the contact was a direct pick up from school and direct return to school from Friday to Monday. Failing the possibility of returning on a Monday because of the logistics it would be better if X were returned through a third party and so there was no direct contact between the parents.
3.It would also be better if W and Z were part of the contact with the father however there would need to be significant repair in the relationship between Mr Brown and the two boys. This might require therapy, an apology and sudden emergence of insight from the father at how he’s dismally mishandled his relationship with them
4.The mother would also need to see the value of the children seeing the father.
5.The financial settlement would need to be completed to reduce this major irritation between the parents that’s also fuelling their animosity which has involved the children.
6.I recommend that neither parent denigrate the other parent in front of the children and if this continues it will further polarise the children (and) make it impossible to sustain a relationship with both parents as can be seen (which) may result cutting out contact with one parent as has happened with the older children.
7.I recommend the mother have parental responsibility for health and education of the children because it’s unlikely the parents are able to negotiate with good will with each other on these important issues.
8. I recommend that neither parent use any physical punishment.
9.I recommend that neither parent use any drugs or alcohol when caring for the children.
10.I recommend that the parents have individual separate respective counselling to help with their personal situations.
11.I recommend that both parents do post-separation counselling courses if they haven’t done so.
12.I recommend that the parents utilise mediation where possible.
13.I recommend that both parents do parenting adolescent courses so that they can understand the challenges for adolescents and the particular difficulties.
14.In many ways even though not a realistic alternative the best outcome for these children would be to be placed in high quality alternate care as the parents are both significantly impaired.
One feature of the Report was that both Z and W said that they did not have a relationship with their father.
The Father filed an Amended Application in a Case on 3rd December 2012, seeking a variation of the Consent Orders of 12th August 2011.
On 10th December 2012 the Court heard the Father’s Amended Application in a Case. During the hearing, Counsel for the Father, Ms Gillies, noted that the children Z and W had no relationship with the Father. On 13th December 2012, Orders were made until further order, providing (in summary):
a)That the child X would spend time with the Father on various occasions in December 2012 and January 2013;
b)The child X would spend alternate weekends with the Father from February 2013 onwards;
c)Changeover for the December and January times was to take place at (omitted) Railway Station;
d)For the purposes of the child spending weekends with the Father during the school term, the child would be collected from and returned to his school;
e)The parties were restrained by injunction from removing X from his current school; and
f)The Mother was ordered to file and serve a Notice of Change of Address for Service.[4]
[4] Brown & Ortega [2012] FMCAfam 1455
The Court also made the following notation:
THE COURT NOTES that Z born (omitted) 1994 has attained the age of eighteen (18) years and the Orders of 12 August 2011 are no longer in force in relation to him as provided by s.65H of the Family Law Act 1975.
The final hearing of the Father’s Application for parenting orders, restricted now to orders about X only, was scheduled to take place from 13th to 15th March 2013.
The hearing commenced on Wednesday 13th March, and over the next three days oral evidence was taken from the Father, his wife, Ms W, and the Mother. The Mother’s cross-examination did not conclude during the time available and the proceedings were adjourned to 3rd and 4th July 2013, for further hearing.
The fact that the proceedings could not be concluded within the allocated three days led to an application being made by the Father on 15th March to vary the interim parenting orders made on 13th December 2012, so as to provide for three situations that had arisen:
a)Arrangements for the father to collect the child X from his school on the (omitted) for the weekend, where the parties had been required to attend court in Sydney and the parties had been unable to agree on alternative arrangements;
b)Arrangements for the Easter break, because in 2013 Ester did not coincide with the school holidays; and
c)That fact that the proceedings had not been completed meant that school holidays would take place on two occasions before the hearing would resume in July.
Orders were made providing that:
a)The Father’s weekend with the child would be exchanged with the following weekend;
b)The Father was to spend time with the child over Easter from the afternoon of Good Friday until 10:00am on Easter Monday;
c)The Father was to spend time with the child for the first half of each of the Autumn, Winter and Spring school holidays; and
d)Changeovers were to take place at the McDonald’s Restaurant at (omitted) at the commencement of the Father’s time and (omitted) Railway Station at the conclusion of the Father’s time.[5]
[5] Brown & Ortega [2013] FMCAfam 238
When the proceedings came back before the Court for further hearing on 3rd July 2013, the Mother had filed that day a lengthy affidavit sworn the day before. The Father objected to the affidavit being read, because of its lateness, but after some deliberation I found that it contained sufficient evidence that went towards the best interests of the child to justify its being admitted. However, both Counsel for the Applicant Father and Counsel for the Independent Children’s Lawyer sought an adjournment to meet the material contained in the affidavit as the affidavit was so voluminous that it would not have been possible to meet the material contained in that affidavit on the day.[6]
[6] Brown & Ortega [2013] FCCA 845 at [5]
On 12th July 2013, I heard an Application for costs arising out of the proceedings and delivered a decision on 16th July. In that decision, I ordered that the Mother should pay:
a)the Father’s costs of $4,500.00 being the costs thrown away in relation to the hearing on 3rd July 2013;
b)the sum of $2,750.00 being one half of the fees paid to Dr C as Court Expert; and
c)the sum of $2,500.00 being the costs of the Application.
An application that the Mother should pay the sum of $130,000.00 as security for the Father’s costs in the proceedings was dismissed.
I noted in the decision that the proceedings between the parties in the Supreme Court of New South Wales had been finalised and:
a)there was evidence that the Father would receive 35% of the balance ordered in the Supreme Court, namely $262,312.74, less a significant sum that he drew against a mortgage together with substantial sums owing to his solicitors, which would leave him with a shortfall of $66,476.79; and
b)the Mother was expected to receive a net amount of $371,875.12, although she disputed that figure “but led no cogent evidence to support that contention”.[7]
[7] [2013] FCCA 845 at [30]
The substantive proceedings were adjourned to 12th and 13th September for further hearing. On 13th September I heard an Application on behalf of the father to enforce payment of the costs ordered on 16th July 2013. That same day I delivered a decision and ordered:
The Respondent is to comply with Orders (2) and (3) made on 16 July 2013 by paying to the Applicant’s solicitors the amounts of $4,500.00, $2,750.00 and $2,500.00 referred to in those orders within fourteen (14) days.[8]
[8] Brown & Ortega [2013] FCCA 1362
The substantive proceedings were adjourned to 1st October 2013 for further hearing. The evidence was finally completed that day and the Application was adjourned to 4th October 2013 for submissions.
On 4th October the Court heard oral submissions from Counsel for the Independent Children’s Lawyer and Counsel for the Applicant Father. The Mother sought leave to make a written submission, which was granted on the basis that the submission was to be filed and served by 18th October 2013.
The Mother filed a written submission on 18th October 2013 and then filed an affidavit on 7th November taking issue with the order for costs sought by the Independent Children’s Lawyer. Annexed to that affidavit was a letter from the parties’ son Z dated 28/10/13 relating to the substantive issues.
The Mother also annexed to that affidavit copies of:
a)a letter from one Ms H, School counsellor of (omitted) High School, dated 7/5/2013; and
b)an affidavit made by the parties’ son Z on 17th June 2013.
These documents were unsolicited and without leave, as well as being out of time. I have not taken those documents into account.
The Parties’ Proposals
In his Application filed on 21st March 2011, the Father sought orders that:
a)The parties should have equal shared parental responsibility for the children Z, Y and X;
b)The children should live with the Mother; and
c)The children should spend time with the Father:
i)on alternate weekends during the school term;
ii)for half of each of the school holidays; and
iii)on Father’s Day and at Christmas.
These apparently unexceptionable orders were implacable imposed by the Mother, who informed the Family Consultant at the Child Dispute Conference on 12th July 2011 that the children should not spend any time with the Father at all.
When the Mother filed her Response on 2nd August 2011, she sought orders that:
a)She should have sole parental responsibility for all three of the children;
b)The children should live with her; and
c)The children should spend time with their father as agreed between the parties and any time that the children requested to do so.
The Mother’s position remained virtually unchanged from then on.
By the time that the Application came on for final hearing on 13th March 2013, the Father’s position had changed significantly. He no longer sought any orders in respect of Z, as Z had become an adult on (omitted) 2012.
The Father still sought an order in respect of W, but only that W should continue to live with the Mother and spend time with the Father in accordance with his wishes.
However, the Father had changed his position in respect of the youngest child X, in that he now sought orders that:
a)He should have sole parental responsibility for X;
b)X should live with him; and
c)X should spend time with his mother:
i)on alternate weekends from after school on Friday until the commencement of school on Monday;
ii)for half of the school holidays; and
iii)from 5:00pm on the Saturday immediately before Mother’s Day until before school on the following Monday.
The Independent Children’s Lawyer had not formed a view at the commencement of the hearing as to the appropriate orders to be made.
Issues
Counsel for the Independent Children’s Lawyer, in his Outline of Case Document, described the issues between the parties, accurately, in my view, as:
a)With whom the child X should live;
b)Whether the parents should have:
i)equal shared parental responsibility for the child (as sought by the father); or
ii)sole parental responsibility (as sought by the mother.
The Independent Children’s Lawyer also opined that at the commencement of the final hearing the parties no longer sought orders in respect of either Z or W (noting that Z had already attained the age of 18 years).
Independent Children’s Lawyer’s proposed Orders at the conclusion of the evidence
At the conclusion of the evidence, on 1st October 2013, the Independent Children’s Lawyer submitted a Minute of Orders Proposed to the effect that:
a)The Father should have sole parental; responsibility for X;
b)The child should live with the Father; and
c)The child should spend time with the Mother:
i)on alternate weekends;
ii)for half of the school holidays;
iii)each Mother’s Day weekend; and
iv)at such other times as the parties may agree in writing.
Evidence
The Father relied on the following documents:
a)His affidavit of 4th March 2013;
b)Exhibit B referred to in his affidavit, which was a bundle of correspondence, copies of Court Orders, printouts of emails and, surprisingly, excerpts from the Family Law Rules 2004;
c)The affidavit of Mr M sworn 26th February 2013;
d)The affidavit of his wife Ms W sworn 4th March 2013;
e)The Family Consultant Memorandum of 12th July 2011; and
f)The Court Expert Report of Dr C of 25th July 2012.
The mother relied on the following:
a)Her affidavits of 2nd August 2011, 30th November 2011, 5th December 2011, and 3rd July 2013;
b)The affidavit of Ms C, a Clinical Psychologist, of 28th February 2013 (which was the subject of objection).
Mr M was not required for cross-examination. His evidence was unexceptional and was to the effect that he is a friend of the Father and has known since early 2012. He has a son aged 9 years who has become friendly with the child X. He and the Father have on occasions taken the two boys on outings together.
The Father gave oral evidence and was cross-examined by Mr Ladopoulos of Counsel for the Independent Children’s Lawyer and the Mother herself.
It was the Father’s evidence that he proposed that orders should only be made in respect of X, whom he was seeking should live with him. He said that the status quo should remain with W, namely that he should continue to live with his mother. However, he expressed the opinion that W sought to leave his mother’s house and reside elsewhere.
The Father conceded that if X were to come to live with him he would initially miss his mother. He would be available to supervise the child before and after school. It was his strong belief that the Mother was trying to alienate the children against him.
The evidence of Ms W was interposed. It was her affidavit evidence that she was a psychologist by profession employed by the NSW Department of Education and Communities as a School Counsellor. She also works in private practice as a Counselling Psychologist.
Ms W deposed that she supported the Father’s application that X should live with them and they had a bedroom set up for him.
It was Ms W’s evidence that her previous history of contact with the Mother had been troubled by incidents of abusive and threatening behaviour that led to the making of an Apprehended Personal Violence Order against the Mother by the Penrith Local Court on 17th February 2011. That order remained in force for a period of 12 months and on 23rd May 2012 was extended for a further period of 12 months.
Ms W deposed that on 22nd December 2012 she and the Father took X shopping to purchase a present for the Father’s adult daughter A. The child said to her that he wished to buy some perfume as a Christmas present for his mother, so she gave him the money to do so.
The next day, when the Mother telephoned to speak to the child, he became distressed after the call and said to her and the father:
“Mum said she doesn’t want my present and I have to leave it here”.[9]
[9] Affidavit of Ms W 4.3.2013 at paragraph [53]
In cross-examination by the Mother, Ms W described having received a telephone call from the Mother who said to her:
“Mr Brown should be home with his children rather than having sex with you. I believe you met on a sex site”.[10]
[10] Oral evidence of Ms W on 13.3.2013
Ms W said that she had to change both her mobile telephone number and her landline number.
She also described how the Mother had arrived unannounced at her home without identifying herself, asking for directions to a nearby railway station. She left but returned a few minutes later, seeking shelter from the rain. Initially, the Mother gave Ms W a false name but then said “I'm Ms Ortega”.
Ms W said that she felt so intimidated at having her privacy invaded that she rang the Police.
The Father’s evidence resumed. He was cross-examined by the Mother, who asked him why he had not sought an order for X to live with him earlier in the proceedings. He said that he and Ms W had seen that “things were deteriorating” and he told her:
“The household under you would be quite stressful. Under me it would not be”.[11]
[11] Oral evidence of Mr Brown 14.3.2013
The Mother’s cross-examination commenced on the second day of the hearing. In answer to a question from Ms Gillies of Counsel, for the Father, as to the orders that she sought for X, the mother said:
“It should be based on what the expert psychiatrist says. I’d like him to be living with me.”
When asked what time she sought that the child should have with his father, the Mother said:
“I’d rather rely on the expert”.[12]
[12] Oral evidence of Ms Ortega 14.3.2013
The following day, the Mother was accompanied to Court by her mother, as a support person, and by the parties’ adult son Z, who wished to observe the proceedings. Whilst I was prepared to allow the Mother’s mother, Ms N, to be present, after I had explained to her the effects of s.121 of the Family Law Act, I did not consider it appropriate for the parties’ son to be present in Court. Accordingly, I closed the Court.
During the course of the Mother’s cross-examination by Ms Gillies, I formed the view that she was being deliberately evasive in her answers and, on occasions, not telling the truth, and I made contemporaneous notes at various during her evidence on that day.
The Mother was cross-examined about the occasion when she had arrived unannounced at the home of Ms W. She said that she had travelled to the area by train to see her brother for lunch and, because she had arrived early, she went for a walk. She went down the street in which she knew Ms W lived and went to look at her house because she wanted to know what Ms W’s asset was. At that time it started to rain so she sought shelter on the veranda and knocked on the door of the house.
In answer to a question from the Bench, the Mother said that when she had arrived on the train she thought she would have a look at the general area and arrived at Ms W’s home, which was the best house in the street. She said it was not premeditated. She went on to say “I honestly do not remember any more”.
The Mother said that she did not introduce herself because she would not do that to a stranger. However, she had no problem in knocking on a stranger’s door. She said that she knew with hindsight only that Ms W felt intimidated because Ms W took out an Apprehended Violence Order against her.
The Mother said that she had trouble remembering what she says.
I found the Mother’s evidence about this incident to be astonishing. I do not accept for a moment that she was telling the truth when she said that had spontaneously decided to go for a walk around the area and happened to turn up at, of all places, Ms W’s home. The behaviour exhibited on this occasion was bizarre and the Mother’s explanation was unbelievable.
The Mother’s cross-examination did not finish that day and the matter was adjourned part-heard until the next morning.
The Court Expert, Dr C, gave oral evidence. He said that he had not seen anything that would cause him to re-think his earlier recommendations but said that he thought the situation with the parents and the child was precarious. He regretted that there was not a third option for X where the child could be free of the conflict and said that what was needed was to find the option that was least detrimental to the child.
Dr C said that he had major concerns about the Mother’s judgment. She had wanted the children to come to court to testify against their father.
When asked by Mr Ladopoulos about what arrangements should be made if the Court were to order that X should live with the Mother, he said that the Court may need to consider a time of a month or six weeks to allow the child to consolidate the relationship with the Father. This should allow the Mother to deal with her grief and loss. There should be phone calls but restricted to once a week. Ideally, school holidays should be split to allow X time to reconnect with his brothers. Handovers should preferably be through a third party.
Dr C said he had been informed that one of the children had come to Court on the last occasion. He was not aware that the Mother had opposed an order for the child to leave or that she had said that he was over 18 years of age and she could not make him leave.
Dr C went to say that he had grave concerns about both parents’ capacity to support the child’s relationship with the other parent. He went on to say that he did struggle when writing his report as to the effect on the child of a change. It was “very much on a knife edge trying to determine the least detrimental alternative, because X seemed to be doing well at the moment.”[13]
[13] Dr C oral evidence 13.9.2013
Ms C deposed to an affidavit on 28th February 2013 to which she had annexed a report. In her report she stated that her consultations with the Mother had been largely in connection with her anxiety and distress over the constant court appearances in which she was involved. She conceded that she had never met the Father but ventured certain opinions about him based on copies of email correspondence between the parties and, also, on what she had been told by the Mother.
Whilst Ms C had not consulted directly with the child X, she stated that she had seen him in the waiting room with his mother many times in the waiting room and formed the opinion that they have a very relaxed relationship.
Ms C expressed concerns that these proceedings were perhaps taking a toll on X as she said that he had made comment that his opinions were not being listened to.
Ms C went on to say:
In my opinion Ms Ortega has really done her best to comply with court orders concerning seeking counselling help for herself and for her children. It is hard to know whether Mr Brown can claim similar diligence in this for himself.
Ms C was cross-examined by Counsel for the Father and Counsel for the Independent Children’s Lawyer. She conceded that she had never met the Father. She said that she had not had any regard for the Court Rules in respect of expert evidence and conceded that she was “certainly an advocate for the mother, but it’s not in a vacuum”.[14]
[14] Ms C oral evidence 13.9.2013
I did not find the evidence of Ms C to be of any great assistance. She could hardly be an expert witness as she had not seen the Father at all and her observations of the child were only as to his interaction with the Mother in her waiting room. Much of the evidence of Ms C appeared to have come directly from the Mother, which Ms C seemed to have accepted without question.
The evidence of Dr C and Ms C was interposed in the cross-examination of the Mother, which was very lengthy. She was asked by Mr Ladopoulos about her views as to the children having a relationship with their father. She said that she had always encouraged X and the other boys to have a relationship with him. She denied that there had ever been times when she felt that X should not have a relationship with his father.
When asked whether she had previously said in court that she had not worked out whether X should have a relationship with his father, the Mother said that she did not know what it meant under the law. The Mother said that she no longer resided in the (omitted) area but X still attends the same school. She said he is extremely happy at his school with his friends and he is doing well. She did not wish to provide the Father with her address for a while.
The Mother told Mr Ladopoulos that she had never been opposed to X having a relationship with his father.
My contemporaneous notes of the Mother’s evidence show that I did not believe her.
Submissions
Mr Ladopoulos for the Independent Children’s Lawyer said that the decision was still “finely-balanced” but it appeared that the Mother would be unable to encourage a relationship a relationship between X and his father. The Mother appears to have subverted the relationship between X and his father. There was a constant willingness on her part to blame the Father for everything. There was clear evidence of the Mother undermining the boys’ relationship with their father and nothing to show that her attitude would change in the future.
Mr Ladopoulos submitted that the Mother’s credit was suspect; she had contradicted herself on various occasions, noting that in April 2012 the Mother had said that there should be no contact between X and his father and earlier in 2013 she was undecided whether X should have time with his father or not.
The Court would have concerns about the Mother’s capacity to provide a structured environment for X. She appears to be indecisive and disorganised. She has complained repeatedly about how stressful everything is.
The Father, on the other hand, was not above criticism. He appeared to be inflexible and had rigid views about rules. The Court would note his falling out with W and his lack of insight into how to remedy that rift.
The Father’s wife, Ms W, appears to be more conscious and more insightful in dealing with the needs of the boys.
On the topic of parental responsibility, it was the view of the Independent Children’s Lawyer that the Father should have sole parental responsibility for X, who should live with him, but that the Father should have the obligation to inform the Mother of major decisions. The Mother and father had an “appalling” track record of communication and the Court would have no confidence that it would improve.
Counsel for the Father submitted that the father had only two areas of disagreement with the proposals of the Independent Children’s Lawyer, being weekend time and the forthcoming Christmas school holidays.
It was submitted that the Mother had consistently failed to articulate what time the child should spend with his father. For about nine or ten months she had not permitted any contact between the child and his father at all.
The Mother’s affidavits have not said a positive thing about the Father and she had not done so in her oral evidence. Her evidence showed that she would not support anyone who was not completely on her side.
Ms Gillies, too, submitted that the Mother’s credit was very poor. The Court should note the level of deceit in her evidence.
It was submitted on behalf of the Father that he was well placed to provide a nurturing environment for the child but the Mother’s presentation was chaotic. The orders least likely to lead to further proceedings would be for the child to live with the Father.
As to parental responsibility, Ms Gillies submitted that there was no way that equal shared parental responsibility could be exercised because the communication between the parties was so poor.
The Mother filed a lengthy written submission on 18th October 2013. It is her submission that if X were to live with his father “there is the possibility of psychological harm as father blames me for everything.”[15]
[15] Mother’s submission 18.10.2013 page 2
The Mother described herself as having supported the orders made by the Court for overnight time and holiday time for X and his father. She stated that the child is “thriving” in her care.
The Mother submitted that her mother was the only living grandparent for the children and that X loves her. She said that separating X from W would be a significant loss for him and noted that Z and Y also keep in touch with their younger brother.
The Mother stated that she and the Father had not been able to make decisions together although she had asked his opinion on all activities to do with the children. However, the Father had not supported her decisions for the child’s development through sport on a Saturday morning.
The Mother expressed concern about the Father’s wife, Ms W, stating:
I am concerned that if things get too hard she may not want X to remain. The relationship with X’s father may not be strong, given his previous five wives.[16]
[16] Ibid page 5.
The Mother remains reluctant to provide the Father with her current address, stating:
There is sufficient reference to theft and confrontation and spying that would support my not wanting Mr Brown to have my address.[17]
[17] Ibid page 10
The Mother was critical of the submissions of Counsel for the Father and for the Independent Children’s Lawyer and their cross-examination of witnesses. She submits that Dr C was influenced by Ms Gillies during her cross-examination of him and that she misled him about her.
The Mother was critical of the mention by Mr Ladopoulos about Z’s attending Court, surmising that Z was not allowed to stay as a result of his father’s urging. She surmises that the opportunity was lost to ask Z why he attended. She stated that the matters raised by Mr Ladopoulos in his submission made no substantive change to the nature of Dr C’s recommendations in his Report.
The Mother submitted that the Father was still “emotionally reliant” on her.
There is one rather baffling passage in the mother’s submission at page 17, under the heading Gillies examination of me, where the Mother states:
It is time to accept apology. Ms Gillies mentioned the expression “look what the cat dragged in” to Dr C in the context of inability to have relationship. What she didn’t say was that it had been explained to Y long ago was that it was a misunderstanding because I thought it meant something precious to the cat. Ie the cat’s idea of showing appreciation for the attention owner’s show it. (from google – I’m not the only one who thought it!).[18]
[18] Mothers’ submission page 17
This is a most strange submission but indicative of the tone and content of the Mother’s presentation on occasions.
The Mother submitted that she will be seeking that no order for costs should be made against her.
The Relevant Law in regard to Parenting Applications
When the Court is considering making parenting orders it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, the Court should have regard to the provisions of:
a)Section 60B;
b)Section 60CA;
c)Section 60CC;
d)Section 61DA; and
e)Section 65DAA.
The Objects and Principles of Part VII
The objects of Part VII are set out in subsection 60B(1). The principles underlying those objects are set out in subsection 60B(2) of the Act.
The Best Interests of the Child
Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration.
Section 60CC sets out the way that the Court determines what is in a child’s best interests. The primary considerations are set out in s. 60CC(2) and the additional considerations are set out in subsection 60CC(3), at paragraphs (a) to (m). Not all of the additional considerations will necessarily be relevant.
The Presumption of Equal Shared Parental Responsibility
Section 61DA requires the Court to apply the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of child abuse or family violence and it may be rebutted by evidence that satisfies the court that it would not be in the child’s best interests to apply the presumption.
Consideration of Equal Time or Substantial or Significant Time
Section 65DAA applies when the Court has made an order that the child’s parents are to have equal shared parental responsibility for the child. If that is the case, the Court is required by s. 65DAA(1) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court does not make an order to that effect, s. 65DAA(2) requires the Court to consider substantial and significant time with each parent.
The phrase “substantial and significant time” is defined in s.65DAA(3). The meaning of the phrase “reasonably practicable” is explained in s.65DAA(5).
Conclusions
I have considered all of the matters in sections 60B, 60CA, 60CC, 61DA and 65DAA insofar as they are relevant. Not all of them are relevant.
The best interests of the child are the paramount consideration. The determination of the best interests of the child was, to use Dr C’s phrase, a “knife-edge” decision, but there are number of factors that support the submissions of the Independent Children’s Lawyer and lead to the conclusion that the orders proposed by the Independent Children’s Lawyer will come closest to meeting the child’s best interests.
One major factor is the credibility of the Mother, or the lack of it. As can be seen, I did not find the Mother to be a witness of truth in these proceedings and I have no confidence that she would take any positive action to support the child’s relationship with his father. Both Counsel commented unfavourably on the Mother’s lack of credibility in strong terms.
The Mother was disorganised and unfocused in her presentation. Her evidence at times appeared to be unfocussed and the evidence of her actions and statements appeared to show her acting in a quite irrational manner, as witness the bizarre actions in visiting the home of Ms W.
The Father has been criticised by Dr C as an inflexible and rigid parent, and it does not assist him that he appears to have lost his relationship with both Z and W and seemingly lacks insight into how those relationships can be repaired.
However, his marriage to Ms W appears to have brought stability to his life. Ms W was a good witness and appears to be a sensible and intelligent woman who has an insight into the needs of the child. Her professional qualifications as a (occupation omitted) and her employment as a (occupation omitted) are of assistance to her in this regard.
There is no benefit to this child in his parents having equal shared parental responsibility for him. their communication is so poor, despite the mother’s submission that she has sought to involve the Father in decision-making, that equal shared parental responsibility would be unviable. It is not in this child’s best interests for his parents to have equal shared parental responsibility for him.
Consequently, the Court does not need to consider the matters in s.65DAA of the Act.
When dealing with the matters under s.60C(2), my overall view is that is of benefit to this child to maintain a meaningful relationship with both of his parents. He is more likely to be able to maintain a meaningful relationship in the care of his father than he is likely to be able to maintain a meaningful relationship with his father if he continues to live with his mother.
The need to protect the child from physical or psychological harm from abuse, neglect or family violence is a consideration, especially as there has been an Apprehended Violence Order against the Mother naming Ms W as the protected person. However, there is no current order and changeover arrangements that reduce the likelihood of the parties having to meet face-to-face should serve to protect the child from exposure to such matters.
Turning to the additional considerations under s.60CC(3), the views of the child were recorded in the Court Expert Report of Dr C at page 16 where the child is reported as saying “I want to live with mum”. However, the interviews were conducted on 30th April 2012 when the child was not then eight years old. Much has happened since then and I do not place great weight on those views.
This child does have a loving relationship with each of his parents. The Mother says that he has a loving relationship with his maternal grandmother.
The child has three elder brothers. It will put some strain on his relationship with Z and W if X no longer lives with them, but weekend and school holiday time should keep the relationship on foot.
It is problematic to form a view about the extent to which each of the child’s parents have taken the opportunity to participate in making decisions about major long term issues in relation to him. The Mother says that she tried to involve the Father but he was not interested. The Father says that the Mother actively prevented him from spending time with X for nine or ten months, which was not denied.
The orders to be made will have significant effect on the child, as they will involve his leaving his mother’s care and living with his father and stepmother. The child will no doubt experience feelings of distress and confusion, which will require sensitive handling by his father and stepmother. He will be separated from his elder brothers W and Z.
There will be some practical difficulty and expense in the child spending time with and communicating with his mother, due to the distance between the parties’ respective homes. However, the parents have been dealing with these travel arrangements since the court first made orders, so I do not consider these difficulties to be insurmountable.
The capacity of each parent to provide for this child’s needs raises some question marks, especially his emotional needs. The father, with his rigid and inflexible attitude, will need to deal sensitively with this child’s feelings, especially in the early stages. The father is fortunate to have the assistance of his current wife in this regard.
In my view, the Mother has placed her emotional needs over those of her children and has undermined their relationship with their father. Her statements to the Family Consultant at the Child Dispute Conference that the children should spend no time with their father and the reasons that she gave illustrate her placing her own emotions over any focus on the children’s emotional needs.
This little boy is not yet ten years of age and has grown up in a household with older brothers. That situation will change for him.
Each parent has been criticised for their attitudes to their children and the responsibilities of parenthood, to the extent that Dr C canvassed the option of X being removed from the care of both of them and placed elsewhere.
There is evidence of family violence in the past. There is no current family violence order in place.
It would be preferable for the Court to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. The orders to be made, which are essentially those proposed by the Independent Children’s Lawyer and largely supported by the father, appear to me to be in the best interests of the child. That being the case, those orders should be least likely to lead to the institution of further proceedings relating to this little boy, who has been in the midst of a conflict between his parents for several years.
Costs
The Independent Children’s Lawyer seeks an order for costs, in that each parent should pay the sum of $8,626.55. The total amount seems to be relatively light considering the fact that this matter has gone on for several years with a final hearing that took seven days when it was estimated to run for three. The blow-out in the time is not due to any delay on the part of the Independent Children’s Lawyer.
There is evidence that the Father’s financial circumstances have been severely strained as a result of this litigation and the litigation between the parties in the Supreme Court.
The Mother has claimed that she has suffered financially as well, but I noted at [42] above that she was expected to receive an amount of $371,875.12 as a result of the Orders of the Supreme Court.
I have taken into account the matters contained in the Mother’s affidavit of 7th November 2013 about the Mother’s income and her need to accommodate her adult son Z. She has also set out in her affidavit that her costs in the Supreme Court proceedings total more than $470,164.00, which is a very large figure. It would appear that the vast bulk of the proceeds of the sale of the parties’ former home has been eaten up in legal costs.
However, I am not convinced that the parties’ financial circumstances justify the Court not making an order for costs in favour of the Independent Children’s Lawyer. I intend to make the orders sought.
I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 3 October 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Injunction
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Procedural Fairness
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