BURGESS & GALBALLY

[2018] FamCA 673

FAMILY COURT OF AUSTRALIA

BURGESS & GALBALLY [2018] FamCA 673

FAMILY LAW – CHILDREN – where the mother seeks sole parental responsibility – where the mother seeks that the children spend no time with the father – where the father has been diagnosed with Narcissistic and Grandiose Personality Disorder – where the children have been exposed to physical and psychological harm in their father’s care – where it is not in the best interests of the children for the parents to have equal shared parental responsibility – presumption of equal shared parental responsibility rebutted – order that the mother have sole parental responsibility – where there is a need for the children to be protected from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence in the father’s care – where the father poses an unacceptable risk of physical and psychological harm to the children –  no orders for the children to spend time or communicate with the father – order for the father to send the children cards and gifts on special occasions.

FAMILY LAW – COSTS – orders for the father to pay certain costs of the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 117
Evidence Act 1995 (Cth) s 140
Family Law Rules 2004 (Cth) r 19.18
Federal Circuit Court Rules 2001 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
I and I (1995)  FLC 92-625
M v M (1988) 166 CLR 69

Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Burgess

RESPONDENT: Mr Galbally

INDEPENDENT CHILDREN’S LAWYER: White Cleland Pty Ltd

FILE NUMBER: MLC 5470 of 2012

DATE DELIVERED: 31 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 8, 9, 10, 11, 12, 15 May 2017 & 1 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Miss Tulloch

SOLICITOR FOR THE APPLICANT: Eales & MacKenzie

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Miss Devine

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

White Cleland Pty Ltd

Orders

(1)That all previous parenting orders be discharged.

(2)That the mother have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the children X born … 2003, Y born … 2005 and Z born … 2007.

(3)That the children live with the mother.

(4)That there be no orders for the father to spend time or communicate with the children.

(5)That the mother and the father each keep the other informed of their current email address and notify of any change to that address within 7 days of such change.

(6)That within 28 days the mother nominate a post office address to which the father may send correspondence, that address to be used by the father only for the purposes of him forwarding to the children a card and gift on the following occasions:-

(a)    Their birthday; and

(b)    Christmas.

(7)That the mother be permitted to inspect any card or gift forwarded to the children or any of them by the father pursuant to order 6 hereof and in the event that she deems such correspondence inappropriate she is not required to pass such items to the children.

(8)That the mother be at liberty to provide copies of :-

(a)    These orders;

(b)    Reasons for Judgment dated this day;

(c)    Family Report and addendum report prepared by Mr B;

(d)    Psychiatric assessment of Dr C dated 26 May 2016;

to any of:-

A.The children’s schools;

B.The children’s treating medical practitioners, psychologists and counsellor;

C.Any state or federal agency including but not limited to the Department of Health and Human Services and the police; and

D.Any other court.

(9)That the mother be solely responsible for the witness fees and expenses of Ms D.

(10)That the mother and the father each pay one half for all other witness fees and expenses of the professional witnesses called to give evidence during the final hearing.

(11)That within 30 days the father pay the mother’s costs as follows:-

(a)     The sum of $2,882 in respect of the hearing on 6 September 2016; and

(b)     The sum of $2,991 in respect of the hearing on 15 May 2017.

(12)That the appointment of the Independent Children’s Lawyer be discharged.

(13)That all extant applications be otherwise dismissed.

(14)That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5470  of 2012

Ms Burgess

Applicant

And

Mr Galbally

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant mother, Ms Burgess (“the mother”) and the respondent father, Mr Galbally (“the father”) are parents to three children, X, aged 14 years, Y aged 13 years and Z, aged 11 years.  The parents have been in conflict regarding the parenting arrangements for their children since their separation in June 2010.  Since that time there have been proceedings in the Suburb E Local Court, the Magistrates’ Court of Victoria, the Federal Circuit Court and now this Court, with respect to both family violence allegations and their parenting dispute.

2. On 14 November 2013 final parenting orders were made by consent in the Federal Circuit Court at Melbourne.  Those orders provide that the parties share parental responsibility for the children (save with respect to counselling or therapy for the children which was to be the responsibility of the mother), that the children live with the mother and that the father spend time with the children during school term each alternate Wednesday from after school to the commencement of school the following day and each alternate weekend from Friday to Monday.  Further orders were made for the children to spend time with the father during school holidays and special days.

3. Notwithstanding those orders the conflict between the parents did not abate. In December 2014 the mother and children moved from Suburb F to Suburb G.  The mother’s evidence is that that move was prompted by her desire to reduce the travel time to her place of work in the city.  Following that move the mother filed a fresh Initiating Application seeking orders that she have sole parental responsibility for the children and that she be permitted to change the children’s school to one near her residence in Suburb G. The father filed a Response to Initiating Application in January 2015 seeking that the mother’s application be dismissed.

4. Since the filing of those applications the dispute between the parties has escalated. For her part, the mother filed an Amended Application on 26 May 2015 seeking a discharge of the previous final parenting orders and seeking orders for sole parental responsibility, that the children live with her, and that the children spend no time with the father. The father in his Response filed 20 October 2016 seeks orders that the mother’s application be dismissed.

5. By the time of the hearing before me neither X nor Y were spending time with the father.  Both children have suffered mental health issues. Y was attending a therapist for assistance with her anxiety which had developed against a background of ongoing parental acrimony.

6. At the time of interview with Mr B, the family report writer, Z exhibited ambivalence and a sense of “despondency” towards the conflict between his parents and the prospect of spending time with his father.

7. The mother submits that the children have been exposed to and are affected by the ongoing conflict which she alleges is largely generated by the father. She challenges the father’s capacity to appropriately care for the children and submits that he has limited insight as to the impact of his behaviour upon the children. Further, the mother submits that the father’s parenting capacity is compromised by his mental health issues, including a diagnosis that he has Narcissistic and Grandiose Personality Disorder, which is identified in the psychiatric assessment by Dr C prepared for these proceedings, dated 26 May 2016.

8. The father maintains that it is the mother and her conduct that has been the catalyst for the dispute. It is his case that the mother has sought to marginalise him from the children’s lives. The father submits that the mother has influenced the children’s attitudes and behaviours towards him the effect of which has been to alienate the children from him.

9. The hearing in relation to these issues was conducted before me over seven days in May and September 2017.  The father represented himself throughout the hearing.   The mother was represented by Counsel.

10. These are my reasons for judgment in relation to the dispute.

Background

1. The mother is aged 49 years and is engaged in full-time employment. She resides with the children at her home in Suburb G.

2. The father is aged 57 years and describes his occupation as student/manager. He resides at his property in Suburb H.

3. The parties commenced cohabitation in October 2002 and separated in June 2010. There are three children of the relationship, X aged 14 years, Y aged 13 years and Z aged 11 years.  At the time of the parties’ separation the children were aged six, four and two years respectively.

4. During the relationship the parties lived in Sydney. Following their separation in about October 2011 the mother applied for an apprehended violence order against the father in the Suburb E Local Court.

5. In January 2012, the mother made application for parenting orders in the Suburb E Local Court and sought permission to relocate to Melbourne with the children.

6. On 8 February 2012 orders were made by the consent in the Suburb E Local Court (Exhibit ICL-4) permitting the mother to relocate to Victoria with the children. Those orders provided that the children live with the father as agreed and if no agreement, upon the father relocating to Melbourne and obtaining appropriate accommodation, the children live with him on a two week rotational basis in the first week from after school Monday to the commencement of school Wednesday and in the second week, from after school Friday to the commencement of school Wednesday.  Those orders also made provision for holiday periods, telephone communication and communication between the parents.

7. Shortly after those orders were made the mother and the children moved to Melbourne. Approximately one month later the father also relocated to Melbourne.

8. Notwithstanding the orders made in February 2012, the conflict between the parties erupted again shortly after the father’s relocation to Victoria.  Within about one month of the father’s arrival in Victoria the mother made application in the Magistrates’ Court of Victoria seeking an intervention order against him.   An interim intervention order was made against the father, including an order that the father’s time with the children be suspended. 

9. In May 2012 the father sought a variation of that intervention order seeking the restoration of his time with the children. A variation in those terms was granted on 8 May 2012 and the father resumed spending time with the children on 11 May 2012.

10. Further intervention order applications were made in August 2012 by the mother, October 2012 by the police on behalf of the father and December 2012 by the mother. 

11. Each of the applications for intervention orders related to complaints of violent, aggressive or abusive behaviour by the other parent, usually at changeovers involving the children.  During the hearing the father sought to re-visit the circumstances of the intervention order proceedings during cross-examination of the mother.  Those proceedings pre-dated the final parenting orders made by consent in the Federal Circuit Court in November 2013.  Given the events that have occurred since those orders were made, the focus of the father on the earlier intervention order proceedings was of little assistance to the Court in the determination of the current issues.  Throughout the hearing I endeavoured to redirect the father’s focus to more recent events, particularly those that have occurred after the final orders were made, with limited success.

12. In June 2012 the mother filed an Initiating Application in the Federal Circuit Court in which she sought parenting orders. During the course of those proceedings there was a s 11 F Assessment of the family by Ms J and psychiatric assessments of both parents by Dr K and family reports prepared by Ms L.

13. Those proceedings culminated in the making of final orders by consent by Judge Hartnett on 14 November 2013. Those orders provided, amongst other things, that: –

    ·    the parties retain shared parental responsibility;

    ·    the mother be solely responsible for decisions in relation to counselling and/or therapy at her cost for the children or any of them provided that such counselling and/or therapy is confidential and that the father is kept advised of and able to obtain information and to participate in such counselling and/or therapy;

    ·    the children live with the mother;

    ·    the children spend time with the father from after school Friday until the commencement of school Monday each alternate weekend and each alternate Wednesday from after school until commencement of school the following morning;

    ·    during school holiday periods for a period of eight days and nights alternating between the first half and second half of the school term holiday periods in terms one, two and three and during each alternate week of the long summer vacation period;

    ·    for specified times on the father’s birthday and Father’s Day.

14. Just over one year later, in December 2014, the mother and the children moved from Suburb F to Suburb G.

15. On 12 December 2014 the mother filed an Initiating Application seeking orders for sole parental responsibility and also that she be permitted to change the children’s school to one local to her new home. In January 2015 the father filed a Response to Initiating Application in which he sought the dismissal of the mother’s application.

16. In March 2015 the mother filed an application in a case seeking orders for the children to attend counselling, orders for the preparation of an urgent family report and also orders permitting the children’s change of school commencing in term two.

17. On 20 April 2015 orders were made by consent by Judge Stewart which provided for the preparation of a family report by Ms M. In addition, orders were made on an interim basis for the father to transport the children to their school in Suburb N from the mother’s new residence two days per week and also to collect the children from school on Mondays, Tuesdays and Thursdays. Further, an order was made for the child X to commence at O School in 2016 and for the parties to do all acts and things necessary to enrol X at that school.

18. In May 2015, X who was then aged almost 12 years ceased spending time with her father.

19. On 25 May 2015 the family report prepared by Ms M was released to the parties. That report, which is annexed to Ms M’s affidavit filed 25 July 2016, made a series of recommendations to the parties at paragraph 103 of the report, including recommendations that: –

    ·    the children Y and Z spend overnight time with the father on alternate weekends from Saturday morning to Sunday evening and that there be no mid-week time and that such time be subject to the father’s home being clean and reasonably orderly prior to the commencement of the time;

    ·    X spend time with the father in accordance with her wishes;

    ·    the mother have sole parental responsibility for decisions regarding the long-term care, welfare and development of the children;

    ·    the father attend therapy with a psychologist or psychiatrist.

20. Ms M noted at paragraphs 19 to 20 of her report that the father acknowledged during interview that the children were strongly expressing a view that they wished to change schools to the primary school local to the mother’s home and further that he now agreed to the change of school as sought by the mother.

21. On 26 May 2015 the mother filed an Amended Initiating Application in which she sought to discharge the previous parenting orders, orders for sole parental responsibility and that the father spend no time with X and that he spend limited time with Y and Z.

22. On 27 May 2015 the matter was heard by Judge Stewart who made interim orders by consent, including orders that: –

    ·the parties do all things necessary to facilitate the children’s enrolment at the primary school in Suburb G;

    ·An Independent Children’s Lawyer be appointed for the children;

    ·Until further order the children spend time with the father during school term each alternate weekend from 8:30am on Saturday until 5:30pm on Sunday and each Thursday from after school until 7:00pm. The father’s time was subject to his home having an appropriate state of cleanliness.

23. Notwithstanding the orders made on 27 May 2015, on 26 June 2015 and 3 July 2015 X again refused to spend time with the father.

24. The matter returned to Court again on 7 July 2015.  That day orders were made by consent by Judge Stewart for the parties to engage in individual and family therapy with Ms D.  Orders were also made restraining the father from physically disciplining or verbally chastising the children and otherwise the proceedings were adjourned for a two day final hearing on a date to be fixed.

25. Following those orders X continued to refuse to spend time with the father.  In the ensuing months X’s physical and emotional health deteriorated, requiring medical attention.

26. In January 2016 Y, who was then aged 10 and a half years indicated that she too no longer wished to spend time with the father. The ongoing conflict between the mother and the father regarding his time with the children continued.

27. In February 2016, Y refused to leave school with the father. Y was subsequently referred for treatment and therapy with the P Hospital’s Child and Youth Mental Health Service.

28. In April 2016 orders were made by consent for the preparation of a report by Ms D, upon whom the parties had been attending for individual and family therapy and for the mother and the father to be psychiatrically assessed by Dr C, psychiatrist.

29. Dr C’s assessment, dated 26 May 2016 is annexed to his affidavit filed 19 July 2016.  At page 17 of his report Dr C assesses the father as follows:-

    …I have significant reservations about his personality functioning.  I consider he has a Narcissistic and Grandiose Personality Disorder, is insightless, relates in a superficial and at times convincing manner, harbours considerable resentment towards [the mother], has boundary issues, lacks responsibility in respect to any true capacity to care for the children, and is a risk to their wellbeing as a result.  There are in addition and importantly, indications of morbid jealously, controlling and paranoid elements…

30. As to the mother, at page 17 of his report Dr C noted her to be:-

    …likely to be more intelligent and thoughtful, and impressed as a considered and caring parent and did not describe symptoms of a psychiatric condition or personality disturbance/disorder.

1. On 21 June 2016 interim consent orders were made by Judge Stewart which provided for order 8 of the orders made on 27 May 2015 regarding the time the children spend with the father to be suspended. An order was then made for Z to spend time with the father.

2. Following the release of Dr C’s report, orders were made for the preparation of a family report by Mr B, psychologist.  Mr B’s report dated 11 August 2016 is annexed to his affidavit filed 25 August 2016.  That report made a series of recommendations, including that the two girls spend time with the father in accordance with their wishes and further that Z should spend time with the father in a restricted format, but not more than the time spent pursuant to the then-current orders. The interim orders at that time were those made on 21 June 2016.

3. It is common ground between the parties that on 12 August 2016, being the day after the release of Mr B’s report, the father collected Z on Friday afternoon from his school, contrary to the then-current interim orders which provided that Z spend time with the father during school terms on each alternate weekend from 8.30am Saturday until 5.30pm Sunday and on each Thursday from after school until 7.00pm.  Following the father’s removal of Z from school that Friday afternoon, an altercation occurred at his home which involved the father, the mother and the maternal uncle.  The father alleges that he was a victim of assault by the mother.  The mother denies that allegation.  I will refer to that event in more detail later in this judgment.

4. It is also common ground between the parties that Z was returned to the mother’s care on 14 August 2016. The following week the mother applied for and obtained an ex-parte intervention order against the father on her own behalf and on behalf of the children. Orders were made pursuant to s 68R of the Family Law Act 1975 (Cth) (“the Act”) suspending the father’s time with the children for a period of 21 days. This was the sixth occasion upon which one of the parties had filed proceedings for a family violence intervention order.

5. Further, on 8 September 2016 the mother filed an Application in a Case in which she sought that the father’s time with Z be suspended.

6. On 22 September 2016 orders were made by consent by Judge Stewart which provided that the father’s time with Z resume on the basis that it occur each alternate weekend from 8.30am Saturday to 5.30pm Sunday and each Thursday from after school until 7.30pm.  Further, orders were made for Z to attend upon Mr B and for him to prepare a brief addendum report. 

7. That report was prepared and released on 19 October 2016.  It is annexed to Mr B’s affidavit filed 29 November 2016.  In the final paragraph of his report Mr B noted:-

   …[Z] conveyed a sense of despondency about the family, their conflict, and their problems.  It seemed to me inevitable that in part, how he feels must be affected by how those around him feel, and in particular how his mother and his sisters feel, regardless of the truth of what has or has not happened.  His feelings in relation to spending time with his father were similar to what he conveyed to me when interviewed for the purpose of the original family report.

8. In October 2016 the proceedings were transferred by the Federal Circuit Court to the Family Court of Australia.

9. Trial directions were made on 23 February 2017 and the matter was listed for final hearing before me and commenced on 8 May 2017.

10. On 18 August 2017 an Intervention Order was made against the father with the affected family members named as the mother and the children. That order is to expire on 16 August 2021. That order was made by consent without admission of the allegations in the complaint and the father was present at the hearing.

Material relied upon and orders sought

1. The mother relied upon the following material in support of her application:-

   ·    Outline of Case filed 4 May 2017 and the documents noted at Part B of that document including:-

   o   Amended Initiating Application filed 25 October 2016;

   o   Affidavit of the mother filed 24 October 2016;

   o   Affidavit of the mother filed 9 March 2017;

   o   Affidavit of the mother filed 20 April 2017;

   o   Financial statement of the mother filed 24 October 2016;

   o   Notice of Risk of Child Abuse filed 26 May 2016;

   o   Reports of Dr C dated 26 May 2016 and 7 June 2016;

   o   Report by Ms D dated 15 July 2016;  

   o   Family report of Mr B dated 11 August 2016 and addendum report dated 19 October 2016; and

   o   Family report of Ms M dated 25 May 2015.

2. At the commencement of the hearing the mother sought final orders in the terms of Part C of her Outline of Case filed 4 May 2017. 

3. The mother’s positon shifted during the course of the hearing and on the second last day of the trial she tendered an amended minute of orders sought (Exhibit A-9).  The orders sought by the mother at the conclusion of the trial are as follows:-

   (1)All previous parenting orders be discharged.

   (2)The mother have sole parental responsibility for the children.

   (3)The children live with the mother.

   (4)There be no orders for time or communication between the children and the father

   (5)The mother be at liberty to provide, from time to time and at her sole discretion copies of the following:

   a.These orders;

   b.The judgment of the Honourable Justice Johns;

   c.The family report and addendum report prepared by [Mr B]; and

   d.The report prepared by [Dr C];

   to the following:

   a.The children’s school(s);

   b.The children’s medical practitioners, psychologists and counsellors;

   c.Any State or Federal Government agency including but not limited to the Child Support Agency, Department of Health and Human Services and the police; and

   d.Any other court.

   (6)The father to within 30 days pay to the mother her costs fixed in the sum of $25,000 being:

   a.The mother’s costs reserved on 16/01/15, 29/04/16, 6/09/16 fixed in the sum of $10,500;

   b.The mother’s costs of 15 May 2017 fixed in the sum of $4,500; and

   c.A contribution towards the mother’s costs of the trial fixed in the sum of $10,000.

   (7)Usual orders pursuant to Section 65DA(2) and Section 62B.

   (8)Certify for counsel.

   (9)All extant applications be otherwise dismissed.

4. The father relied upon his Outline of Case document filed 5 May 2017. At Part D of that document the father identified the material he sought to rely upon.  That material included affidavits with exhibits filed in 2013 (three) and 2015 (five), they being affidavits filed for earlier hearings in the Federal Circuit Court.  Pursuant to the trial directions made by me on 23 February 2017 both parties were ordered to file updating affidavits of evidence-in-chief of all witnesses (noting that affidavits relied upon for previous hearings save for the trial affidavit documents filed by the mother on 24 October 2016 could not be relied upon as evidence-in-chief).

5. Given my trial directions, at the commencement of the hearing I invited the father to identify the documents relied upon filed pursuant to the orders of 23 February 2017 for the purposes of these proceedings.  He identified the following documents as being those relied upon:-

   ·    Response to Initiating Application filed 22 October 2016;

   ·    Affidavit filed 5 May 2017.  That affidavit had 248 pages of annexures (58 annexures in total).  In the circumstances I informed the father that those annexures would not be read but if he sought to rely upon any annexure he could tender such document as part of his case;

   ·    Affidavit of Ms Q Galbally filed 3 April 2017;

   ·    Affidavit of Ms R filed 3 April 2017;

   ·    Affidavit of Mr S filed 3 April 2017;

   ·    Affidavit of Mr R filed 3 April 2017;

   ·    Affidavit of Ms T filed 3 April 2017;

   ·    Affidavit of Mr U filed 5 April 2017; and

   ·    Affidavit of Ms V filed 5 April 2017.

6. On the first day of the hearing the father tendered a minute of proposed orders (Exhibit R-1).  The orders sought by the father as set out in that document are as follows:-

   1.That the second final orders of November 2013 be reinstated in full with respect to contact with the children.

   2.That for the first eight weeks after the making of these orders [X] and [Y] spend private supervised time with the father and then based on the recommendations of the practitioner who is providing supervised time.

7. The Independent Children’s Lawyer (“the ICL”) relied upon the following material:-

   ·Outline of Case filed 27 April 2017;

   ·Section 11F Memorandum prepared by Ms AA dated 2 February 2015;

   ·Reports of Dr C dated 26 May 2016 and 7 June 2016;

   ·Report by D dated 15 July 2016;  

   ·Family report of Mr B dated 11 August 2016 and addendum report dated 19 October 2016;

   ·Family report of Ms M dated 25 May 2015; and

   ·The report of Ms W, social worker at P Hospital CYMHS dated 2 May 2017 (Exhibit ICL-5).

8. At the commencement of the hearing the ICL sought orders in the terms of Part C of the Outline of Case document.  The Case Outline noted that the proposed orders reflected the preliminary view of the ICL, who reserved the right to amend her positon following the hearing of the evidence at trial.

9. At the conclusion of the hearing during final submissions a further minute of proposed order was tendered on behalf of the ICL (Exhibit ICL-8).  The orders sought by the ICL at the conclusion of the trial are as follows:-

   1.   The Mother have sole parental responsibility for the children.

   2.   The children live with the Mother.

   3.   There be no orders for time or communication between the children and the Father.

   4.   The mother be permitted to provide a copy of these Orders and Reasons for Judgment to:

   a.   The children’s school(s);

   b.   The children’s treating medical or like professionals;

   c.   The Department of Human Services;

   d.   Victoria Police;

   e.   Any Magistrates’ Court or other relevant Court.

   5.   The Mother be solely responsible for the witness fees and expenses of D.

   6.   The Mother and Father be equally responsible for the witness fees and expenses of all other professional witnesses called to give evidence in the trial.

The Issues

1. The issues in this matter as identified in the parties’ affidavit material and the expert reports and during the course of the hearing, may be summarised as follows:-

   ·The allocation of parental responsibility;

   ·Whether the children have been exposed to family violence;

   ·Whether the father has a psychological or psychiatric condition and if so, its impact upon his capacity to parent the children;

   ·Whether the father poses a risk of physical or psychological harm to the children;

   ·Whether the mother has influenced the children’s attitudes and views towards the father;

   ·The mother’s capacity to support the father having a meaningful relationship with the children; and

   ·The children’s developmental needs and views.

The Hearing

1. As this is a parenting case, the Court must give effect to the principles enunciated in Division 12A of the Act. Section 69ZN of the Act sets out the principles for conducting child-related proceedings. Of particular relevance to these proceedings are:-

   ·The first principle which requires that the Court consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;

   ·The second principle, which requires that the Court actively direct, control and manage the conduct of the proceedings; and

   ·The fifth principle which provides that the proceedings should be conducted without undue delay and with as little formality, and legal technicality and form as possible. 

2. The application of those principles in these proceedings, where the mother was represented by counsel and the father represented himself was at times difficult.  Coupled with the father’s limited understanding of the Court process and the relevant legal principles, was his propensity to interrupt, speak over witnesses, counsel appearing in the matter, as well as the Court.  Further, at times the father simply ignored directions given by the Court as to the conduct of the matter. 

3. Dr C, Psychiatrist assessed both the mother and the father.  It is his assessment that the mother does not have a psychiatric condition.  As to the father, he observed that he:-

   …related at a superficial level, demonstrated little in the way of intuitive understanding of [the mother] or their relationship, was boastful and over-inflated in his belief in himself and vituperative in regard to his criticism of her.  His account was unremittingly critical of [the mother], and impressed as someone who was not prepared to let matters lie.[1] 

   [1] Affidavit of Dr C filed 19 July 2016, p. 21

4. Those comments are consistent with my own observations of the father’s evidence and conduct and the way he presented his case during the course of the hearing.

5. Ultimately, to ensure that the matter was able to be heard and determined, it was necessary at times to allow the father some latitude in the presentation of his case.  Notwithstanding the trial plan prepared at the commencement of the hearing (Exhibit ICL-1) I allowed the father significantly longer periods with the expert witnesses, particularly Dr C and Mr B to ensure that he had every opportunity to test their evidence.

6. As the father was unrepresented, prior to counsel for the mother opening her case, I informed the parties that in accordance with the provisions of the Act I must have regard to the best interests of the child as the paramount consideration. Further I informed the parties that in determining what is in the best interests of the children, I would have regard to the considerations set out in s 60CC of the Act and I drew the parties’ attention to those provisions.

7. I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each of the parties had to cross-examine the witnesses.

8. In his Case Outline document, the father raised as the first contested issue identified at Part C of that document the question of whether the mother’s application should be dismissed pursuant to the principles in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”). He noted at page 15 of his Case Outline that the final parenting orders made on 14 November 2013 were orders made by consent, that at the time those orders were made both parties were represented and further that there had not been any change of circumstance to warrant changing the final orders.

9. In light of those submissions prior to the mother’s counsel opening her client’s case I sought clarification from the father as to whether or not he sought the dismissal of the mother’s application relying upon the principle in Rice & Asplund.  Given that the father was not spending time with either X or Y and in the case of X had not done so since 2015, it was my view that the father should have the opportunity to consider whether he wished to press that part of his application.  

10. The father conceded, sensibly in my view, that he did not seek to pursue any application relying upon the principles enunciated in Rice v Asplund.  Further, the father confirmed that he was not seeking orders that he spend equal time with the children.

11. The hearing commenced on the morning of 8 May 2017 and continued until 12 May 2017. 

12. On 12 May 2017 the father became distressed at the conclusion of Mr B’s evidence, to which I refer to in more detail below.  Following Mr B’s evidence the father indicated that he was considering not requiring the final witness, Ms M for cross-examination as he was at his “wits end”. The father began crying. I adjourned the proceedings to 2.15pm to afford the father the opportunity to compose himself, consider the evidence and his position as to whether he required Ms M for cross-examination.

13. Upon the resumption of the hearing I was informed that during the luncheon break, the father attended upon the Court’s Child Dispute Services and spoke with the Regional Coordinator for Child Dispute Services, Ms BB.  Ms BB attended Court to support the father. The Court was informed by Ms BB that the father wished to have discussions with counsel for the mother, on the basis that the mother’s solicitor not be present. Concern was expressed by counsel for the ICL as to counsel for the mother having discussions with the father without the presence of a witness, given the allegations made by the father as to the conduct of counsel for the ICL during the trial, which I will detail further below. 

14. The father then informed the Court that he “can’t do it anymore”. Given the father’s obvious distress, I formed the view that the hearing should be adjourned for the day and the father should have the opportunity to reflect upon the evidence and his position over the course of the weekend, and if necessary obtain legal advice as to his position.  Accordingly, I adjourned the proceedings to 9.30am on 15 May 2017.

15. When the hearing resumed on 15 May 2017 the father did not appear.  The father had forwarded an email to the ICL, the mother’s solicitor and my Associate at 4.43pm on 14 May 2017 (Exhibit ICL-7) which stated:

    …

    i’m [sic] in no state to go to court tomorrow to talk about this. ive [sic] not been able to get any legal advice, and ive [sic] spoken to counsellors and have a session with my psychologist tomorrow.

    Can the court please excuse me during this incredibly difficult time.

    …

16. The mother’s lawyers responded to that email, confirming their instructions to proceed in order to complete the hearing of the matter and further informed the father of their instructions to seek orders in the terms of a proposed Minute (Exhibit A-7).

17. Given the father’s presentation on 12 May 2017 and the content of his email (Exhibit ICL-7), I formed the view that the matter could not proceed on 15 May 2017.  Both counsel for the mother and the ICL made oral application for interim orders that the father’s time with the children be suspended, that the mother have sole parental responsibility and that the matter be otherwise adjourned part-heard to enable the completion of evidence from Ms M, psychologist and final submissions. 

18. Both Counsel relied upon the evidence given by Dr C and Mr B in support of their application for interim orders.

19. As noted earlier, Dr C assessed the father as having Narcissistic and Grandiose Personality Disorder.  During cross-examination by counsel for the ICL, Dr C was questioned as to whether the father poses a risk to the mother or the children if his application is unsuccessful.  As to any risk to the mother, Dr C’s evidence was as follows:-

    There may be a risk…I don’t know whether it would necessarily go to the level of…physical risk, but I think that the father’s tendencies not to be able to let go of things may well lead to an exacerbation of some of the behaviours and possible behaviours which we know about in these matters, such as stalking, harassment of various forms, financially, social media…I would consider that there would be a risk of that.

20. Dr C’s response to the question as to whether the father posed a physical risk to the children if aware of the possibility of the Court ending his relationship with the children, Dr C stated as follows:-

    …at the time that I saw him, he was very much, I think, feeling in the right and…that he would win out in the end.  So…to have the relationship end between him and the children will…have a major impact upon him.  Given that in some respects, he has a…strong outer kind of appearance and level of functioning, such…blow I think would certainly run the risk of some form of decompensation along the lines that we’ve spoken about before.  Now…we’re well aware of one particular instance in which a father did just what you’re talking about,…and it was a matter before the Court. All I think I can say in the end is that if…such orders were made, I think that there would need to be some form of treatment ordered for the father.

1. Dr C was also questioned by counsel for the ICL as to the risks for the children if the Court were to reserve its judgment, and in particular the risks to Z who at the time of the hearing was still spending time with the father.  Dr C responded to that question as follows:

   My view would be that…the greater risk would be the emotional one because the father would have great difficulty in maintaining the boundaries around himself as a father and containing his various concerns that you’ve outlined, and I think there is a history of the father influencing the children, or attempting to anyway…I think there’s a high risk of that, and there is a possible risk of the father acting in a…possibly harmful way to his son if his anger was to spill out towards [Z]…with perhaps verbal comments, blaming him and so on. 

2. Counsel for the mother also cross-examined Dr C as to the potential risks to the children, and in particular to Z if judgment is reserved.  Dr C was asked to consider Z’s statement to Mr B in relation to his time with the father.  At page 3 of his addendum report dated 19 October 2016 Mr B records Z’s statement to him as follows:-

   …at dad’s, I feel depressed and upset…In general I don’t like dad much because he is usually main [sic] and he fakes being nice to other people…He slaps, kicks, and punches my sisters and me…he doesn’t tell the truth about what he does…I’ve seen him punch and kick [Y] and [X], but it’s less with me…I don’t trust him because he has promised a lot of things and doesn’t do them…If I don’t act like I am having a good time, my dad will get angry at me, but I really do like seeing my friends and I’m relaxed because there are other people around and because dad changes his behaviour when they are there, otherwise people would see what he is really like.

   (emphasis omitted)

3. At the time of Z’s attendance upon Mr B he was aged nine years.  Dr C was asked whether his assessment of risk altered if the Court accepts Mr B’s report as to Z’s statement to him.  Dr C confirmed that at age nine Z is well able to express himself and it would appear that he does so quite clearly in the reported statement.  Dr C observed that:-

   …what he is depicting is a truly awful situation because essentially he is the sacrificial child, in a sense, in that he…is the one that is still experiencing…these oppressive behaviours by the father, and essentially what he is saying is that…he’s trapped in a situation that he would prefer not to be in, and I have significant reservations about that continuing.  In fact, I would say as a child psychiatrist…that’s simply not correct.  It’s not right for…a boy to be enduring what he is…In regard to risk, there is no doubt in my mind that the situation is harmful for him…I haven’t seen [Z], but on the basis of what he says if it’s uninfluenced and given that already the father is abusing him physically and has abused the girls, then in line with the questioning that I was put to before,…I think that there is a risk of some physical harm.

4. It was submitted by the ICL that in light of Dr C’s evidence as to the potential physical and psychological risk of harm to Z posed in the event of a reserved judgment in circumstances where the mother seeks orders that the father should spend no time with the children (and that application is supported by the ICL), that interim orders should be made suspending the father’s time. 

5. Dr C is a consultant psychiatrist who has been engaged in private practice since 1986.  There was no challenge to his qualifications.    I found him to be a forthright and balanced witness.  Dr C’s evidence in relation to his assessment of the father and as to the risks he poses to the mother and the children was both compelling and disturbing. I accept his evidence. 

6. Having accepted Dr C’s evidence as to the potential risk of physical and psychological harm the father poses to Z pending a reserved judgment, on 15 May, 2017 I made interim orders suspending the father’s time and giving the mother sole parental responsibility for the children.

7. The proceedings were otherwise adjourned to 3 August 2017.  However, due to the witness, Ms M being unavailable on that date, the hearing did not resume until 1 September 2017.

8. Upon the resumption of the hearing, the father confirmed that he sought to proceed with his original application.  To that end, Ms M was called and gave oral evidence.  Following her evidence, the parties made closing submissions and I reserved my judgment.

Evidence

1. Findings are made on the balance of probabilities having regard to the evidence.  In applying that standard the Court must have regard to the nature and subject matter of the case and the gravity of the matters that are alleged (s 140 Evidence Act 1995 (Cth). In what follows statements of fact constitute findings of fact.

The mother’s evidence

1. The mother gave evidence on the first two days of the hearing.  She was cross-examined by Counsel for the ICL and by the father, which having regard to the long history of conflict between the parties, was an obviously difficult experience for her.  I observed the mother to be resigned to the process, at times appearing physically worn down. 

2. The mother impressed as an open and frank witness who was prepared to make concessions when appropriate to do so.

3. Much of the focus of the father’s cross-examination of the mother was on the history of the case, particularly with respect to the family violence proceedings following the parties’ separation in 2010 and their relocation to Victoria in 2012. 

4. The mother’s oral evidence was consistent with that given in her trial affidavit and also with the history provided by her to and reported by Ms M, Mr B and Dr C.

5. During the course of her evidence the mother conceded on occasion as to her uncertainty as to dates of events, particularly with respect to the intervention order proceedings.  She also made concessions with respect to her own behaviour.  For example, she made appropriate concessions as to her poor conduct during an argument with the father’s former partner, Ms Q Galbally at a party in Canberra in 2009.  The mother conceded that she slapped Ms Galbally at that event and expressed her regret in relation to her conduct on that occasion.

6. The mother also made concessions with respect to matters such as Z’s behaviour at contact changeovers.  She was cross-examined as to Z’s demeanour during a changeover at Red Rooster on 29 September 2016 and confirmed that on that occasion Z readily left her motor vehicle and went to the father’s car.  The mother’s account of that event was consistent with the evidence of the father’s witness, Ms R, as contained in Ms R’s affidavit filed 3 April 2017. 

7. The mother’s evidence as to the father’s conduct was often supported by other evidence, particularly that of Dr C and Mr B.  Similarly, her evidence as to the children’s behaviour and response to the father was often supported by other evidence.

8. Throughout her oral evidence, I found the mother to be child-focussed; she demonstrated insight and understanding as to the differing needs of the children.  I am satisfied that the mother was a truthful witness. 

Evidence and assessment of the father

1. As noted earlier, given the father was representing himself he was afforded some latitude in the manner in which he presented his case.  Throughout the proceedings the father continually talked over myself, the witnesses whom he was cross-examining and counsel appearing for the mother and the ICL. 

2. Much of the focus of his cross-examination of witnesses was directed towards historical matters, particularly the history of the family violence proceedings and his determination to establish that it was the mother, and not he, who was the perpetrator of family violence.  In so doing, the father lost sight of the issues currently before the Court, particularly the evidence of expert witnesses as to the health and well-being of the children. 

3. When cross-examining both Dr C and Mr B I repeatedly attempted to direct the father’s attention to the parts of their reports related to their assessment of him and the children, rather than their historical account of the parties and the proceedings.  Notwithstanding such direction, the father’s focus was unable to shift to those matters likely to assist me in a determination of what is in the children’s best interests. 

4. The father’s presentation during the hearing was consistent with the observations of Dr C insofar as he demonstrated little insight as to the needs of the children and was entirely fixed in his view that the mother was manipulating the children and alienating them from him and that it was she who was the instigator of violence within their relationship.

5. The father consistently demonstrated that he was unwilling or unable to make appropriate concessions.  For example, when cross-examined in relation to his child-support liability the father was evasive when questioned as to the recent reduction in the child-support assessment.  The father stated that he was not aware of the reduction.  It was put to him that his liability had been reduced from $445 per fortnight to $225 per fortnight.  The father’s evidence was that he was unaware of that changed assessment and that he had not seen it. 

6. When asked if he accepted that the mother finds it difficult to make ends meet on $445 per fortnight the father’s response was that most of her debts are due to legal fees.  When pressed on the issue the father’s evidence was that he did not believe the mother finds it difficult to meet the children’s needs.

7. When asked as to the impact upon the mother of a reduction of child-support to $225 per fortnight the father’s response was that the mother had never been assessed based on her income of $172,000 per annum.  The father’s response to any challenge in respect of his own conduct was to apportion blame or responsibility to the mother.  This was but one example of such behaviour. 

8. Another example of such conduct was the father’s evidence in relation to his recording of conversations between the mother or the children and him.  During the course of his evidence the father conceded that he had been recording his conversations with the mother as well as his conversations with the children since about 2012.  He also confirmed that he had on occasion video-taped contact changeovers.  When it was put to the father that the mother feels harassed by such recording the father responded by denying that such conduct could make the mother feel harassed.  He justified that conduct by stating that the mother relentlessly accuses him of family violence and that he needs to make recordings in order to protect himself.  It was the father’s evidence that the mother was persecuting him.

9. When it was put to the father that Ms D, family consultant, had expressed concern as to his videoing and recording his interactions with the mother and the children[2], the father justified his actions by stating that he had been told to record his conversations by Acting Inspector CC of Victoria Police.  In support of that position, the father produced an email from that police officer dated 15 February 2016 (Exhibit A-6).  Contrary to the father’s assertion, that email states that the police officer could not specifically recall providing the father with such advice about recording his interaction with the mother, but confirmed that it was that officer’s practice to inform victims of family violence as to the manner in which it was permissible to make such recordings.  Upon production of that email the father was challenged as to his statement that he had been told by police to record his dealings with the mother.  The father maintained his position stating that it was a matter of “semantics” and that the police officer could not recall the conversation with him.

   [2]  Affidavit of Ms D filed 29 July 2016, p 11.

10. The father demonstrated neither insight nor empathy as to the impact of his recording of those interactions upon the mother and the children.  His position when challenged as to that conduct was one of righteousness.

11. During the course of the hearing the father made serious allegations of misconduct against counsel appearing for the ICL.  On 10 May 2017 the father forwarded an email to the Melbourne Case Coordinators and my Associate in which he stated:-

    …

    Over the course of the hearing over the last 2 days I have repeatedly been subject to verbal abuse and harassment from counsel for the ICL while in Court, but not while Justice Johns (nor her associate) is present in the courtroom.

    The worst of it was yesterday morning – probably between 10.00am and 10.30am.

    This is an incredibly emotional time for me as it is, and I’m finding it difficult enough to cope anyway, but having this happen is making it just too much.  I don’t believe I should have to put up with this abuse, in of all places, the Family Court.

    I request that Justice Johns, or someone in the Court address this and do something about it immediately.[3]

    …

    [3] Exhibit A-1.

12. I brought the email to the attention of all parties at the commencement of the hearing on 10 May 2017.  Counsel for the ICL denied any inappropriate conduct by her towards the father during the course of the proceedings.  I invited the father to particularise the conduct which he said constituted abusive behaviour.  He responded by stating that counsel for the ICL had treated him like “an idiot”, that she had made “smarmy little comments” towards him and that that behaviour had worsened the preceding day.  In light of the conduct alleged, I ordered a transcript of the proceedings for the period between 10.00am and 10.30am on 9 May 2017, when the father alleged that the behaviour of Counsel for the ICL was at its worst. 

13. Upon the parties having an opportunity to read the transcript, counsel for the ICL sought an indication from the father as to whether he persisted with his allegation that counsel for the ICL behaved inappropriately towards him.  Alternatively, she invited him to withdraw the allegation in its entirety.  That application was made in circumstances where the transcript for 9 May 2017 (Exhibit ICL-6) does not disclose any inappropriate comment by counsel for the ICL to the father. 

14. The father’s response to that invitation was to make a submission to the effect that it was not what was said by Counsel for the ICL, but the manner in which it was said that caused offence.  Again, he was invited to particularise his complaint.  He maintained that it was counsel for the ICL’s tone of voice and manner which he found to be intimidating.  Given the father’s statements I enquired as to whether it was necessary to have the audio of the discussion between the father and Counsel for the ICL made available.  Both counsel for the ICL and the mother agreed that that was an appropriate course given the father’s allegations.  The father declined the opportunity to hear the audio of his discussions with counsel representing the other parties; rather, he elected to withdraw his complaint against the ICL. 

15. The father’s conduct in relation to this matter was unimpressive.  The transcript of discussion between the father and counsel for the ICL did not support his claim of inappropriate conduct by that member of counsel and I am satisfied that there was no basis for the complaint made against her.  For the father to then persist with allegations of inappropriate behaviour compounded the issue.  It was only when faced with the prospect of an audio of the conversations being made available that the father saw fit to withdraw his allegations.  The only inference to be drawn from that conduct was that the father recognised that the audio would not support his allegation.  The father’s pursuit of that allegation was consistent with Dr C’s evidence that the father was a person who was not prepared to let matters lie.[4] 

    [4] Affidavit of Dr C’s filed 19 July 2016, p 22.

16. Throughout the proceeding the father was highly critical of the mother and those witnesses whom he perceived to support her case.  In his evidence he described the mother as a sociopath, that she did “outrageous things” and that she was a liar.  The father also alleged that X was a liar and that her statement to Ms M regarding the state of his home was an example of such conduct. 

17. In addition to being highly critical of counsel for the ICL, it emerged during the course of the hearing that the father had also made complaints against Constable DD in relation to that officer’s handling of an application for an intervention order and alleged omissions of that officer in his preparation of that application (Exhibit A-4), and to the Australian Health Practitioner Regulation Agency regarding the conduct of Ms M with respect to the preparation of her family report (Exhibit A-2). 

18. My impression of the father through the course of the proceedings both when conducting his case and when giving evidence was that at every opportunity he sought to blame others for the circumstances in which he finds himself.  That observation is consistent with the evidence of Mr B who noted at paragraph 86 of the family report dated 11 August 2016 as follows:-

    Ultimately it will be a matter for the Court to decide whether weight should be placed upon the diagnosis of Narcissistic Personality Disorder but, it is common that such people work from an external locus of control, that is, that they place blame and responsibility for their problems exclusively outside of themselves, that they do not reflect upon themselves or their contribution, that they perceive danger, risk and attack from outside, and especially the person whom they have identified as the Target of Blame, who in this case is [the mother] and therefore justify their aggressive, attacking response and thereby perpetuate conflict.  It does appear to me that this encapsulates much of this dispute and much of the behaviour of [the father], and certainly as described through the eyes of the children and by [the mother]…

19. The father’s evidence was often based on unsubstantiated assertions or alternatively assertions which were in many instances contradicted by other evidence.  As a result, I am satisfied that the evidence of the father must be treated with caution and where there is a conflict between his evidence and that of the mother, I prefer the mother’s evidence.

Evidence of Mr R

1. Mr R is a friend of the husband whom he has known since the father commenced living in the Suburb H area.  They are both members of the local residents’ association.  Mr R has known the father since 2012. 

2. In his affidavit filed 3 April 2017 Mr R deposed as to having social interactions with the father and the children and as to his observations of the father on 12 August 2016 when the father alleges he was a victim of an assault at the hands of the mother.  The affidavit of Mr R supports the father’s position that he should be spending time with the children.

3. Mr R was cross-examined by counsel for the mother and counsel for the ICL. It was apparent from his oral evidence that Mr R had little awareness as to the issues in the proceedings. 

4. Mr R was sympathetic to the father’s position and sought to present the father in a positive light both as to his relationship with the children and as to the manner in which he maintains his home.  However during cross-examination Mr R conceded that he was not in a position to give evidence as to what occurs within the father’s home and that generally he sees the father socially and outside of the home. 

5. Mr R conceded that he was unaware of the evidence of Dr C or of his diagnosis of the father.  Further, he confirmed that he was not aware that Z was not meant to be with the father on the evening of 12 August 2016 when the father alleged he was assaulted by the mother. 

6. Whilst Mr R deposed in his affidavit that he had seen a couple of abrasions on the father’s arm on 12 August 2016, when cross-examined about that evidence he could not recall where the abrasions were on the arm or indeed on which arm those abrasions appeared.  Further, when asked whether he was told how the abrasions occurred it was his evidence that the father had told him that the abrasions occurred when a door slammed on his arm. 

Costs reserved on 16 January 2015

1. The mother seeks orders with respect to costs reserved at a hearing before Senior Registrar Fitzgibbon on 16 January 2015. That day the Senior Registrar made orders dismissing the interim applications before the Court, transferring the proceedings to the Federal Circuit Court and orders for the preparation of a s 11F assessment. In support of her application for costs that day, the mother relies upon her financial circumstances as a justification for an order for costs. She relies upon no other consideration as identified in s 117(2A) of the Act. In my view, in circumstances where there is no suggestion that the father’s conduct gives rise to the costs application, where that hearing was not necessitated by a failure to comply with orders and where it is not said that a party has been wholly unsuccessful in the hearing, there is no circumstance that would warrant a departure from the general rule that the parties should bear their own costs in respect of that hearing.

Costs reserved on 29 April 2016

1. The mother also seeks an order for her costs reserved at the hearing before Judge Williams on 29 April 2016.  That day her Honour made orders by consent with respect to the appointment of Ms D and Dr C to prepare their respective reports.  Orders were also made that the father’s application for a review of the decision of the Court made 27 April 2016 be dismissed.  The costs of both parties of that day were reserved. 

2. During the course of her oral argument counsel for the mother conceded that in circumstances where orders were made by consent it could not be said that the day at Court was “entirely wasted”.  The principal basis relied upon by the mother in respect of that part of her costs application was that the father was wholly unsuccessful in his application listed before the Court that day.

3. The mother also placed reliance on the financial circumstances of the parties and referred to and relied upon her Financial Statement filed 24 October 2016. 

4. Again, in circumstances where orders were made by consent that day in order to progress the matter, particularly insofar as orders were made for the preparation of psychiatric assessment of the parties and a report from the therapist engaged with the parties to provide family therapy, in my view there is no basis for departing from the usual rule as to costs.  Therefore, I am not persuaded that there should be an order with respect to the mother’s costs of that day.

Costs reserved on 6 September 2016

1. The mother also seeks costs in respect of the hearing before Judge Stewart on 6 September 2016.  That day the matter was listed before the Court as a result of a subpoena filed on behalf of the father directed towards Company LL, which is the estate agents from whom the mother leased her residential property.  That day Judge Stewart ordered that the subpoena be struck out.  In addition, order 4 of the orders made by her Honour provides as follows:

   The wife’s costs of and incidental to the objection to the subpoena directed to [Company LL] be and are hereby reserved to the final hearing.

2. It was submitted on behalf of the mother that the father was wholly unsuccessful in relation to the issue before the Court. Orders were made that the subpoena filed on his behalf be struck out. In those circumstances it is submitted that it is appropriate that there be an order for costs. Further, it was submitted that costs should be fixed. The fee charged by counsel appearing on behalf of the mother that day was $2,000. The scale of costs provided under the Federal Circuit Court Rules (2001) for both counsel and instructing solicitor for the interim hearing is $2,882. The amount actually charged to the mother in respect of that hearing was $4,001.

3. During closing submissions, the father conceded that there should be an order for costs in respect of that hearing. The father requested that any costs order be “kept to a minimum”. The father conceded that the amount payable pursuant to the Federal Circuit Court Rules (2001) was “fair”.

4. I am satisfied in circumstances where the father was wholly unsuccessful in respect of that application that it is appropriate that there be a departure from the usual rule and I propose to make an order that the father pay the mother’s costs of and incidental to the hearing on 6 September 2016, fixed in the sum of $2,882. 

Costs of 15 May 2017

1. The mother also seeks an order for costs in respect of costs thrown away on 15 May 2017, being the day upon which the father failed to attend Court.  That day I made an order reserving the question of the mother’s costs.  The mother seeks an order that the father pay her costs fixed in the sum of $4,500, being costs of counsel and instructing solicitor.

2. The mother relies upon the father’s conduct in support of her application for costs of that hearing.  It is her case that in circumstances where the father failed to attend Court which necessitated a further adjournment of the proceedings, it is appropriate that an order for costs be made.  The father concedes that he did not attend Court that day.  His justification for his failure to attend is that he was unwell and not in a position to attend Court that day. The father provided no medical evidence in relation to his non-attendance at Court that day.

3. I am satisfied that the mother has incurred costs as a result of the father’s failure to attend Court and that this is a circumstance which justifies a departure from the usual rule with respect to costs. 

4. Again the mother relies upon her Financial Statement which discloses her income at $3,050 per week and her expenses at $2,517 per week.  That document also discloses that the mother’s liabilities, which include $60,000 in legal fees, exceed her assets.  I have no evidence as to the father’s financial circumstances. 

5. Neither party is in receipt of legal assistance.

6. No submission was made by either party as to any offers made.

7. Notwithstanding the amount sought by the mother in Exhibit A9, during submissions counsel for the mother conceded that her costs for that day should be fixed in the sum of $2,991.  The scale of costs provides that the time for a lawyer to attend court under Item 108 is $241 per hour and for counsel pursuant to Item 205 between $1,961 and $2,883.  I am satisfied having regard to the amounts permitted under the Scale that it is appropriate that there be an order that the father pay the mother’s costs fixed in the sum of $2,991.

Other costs

1. The mother also sought an order that the father pay costs fixed in the sum of $10,000 in relation to the proceedings.  The grounds relied upon by the mother in support of that application are:-

   ·That the father has been wholly unsuccessful in the proceedings;

   ·The relative financial positions of the parties given that the mother has primary responsibility for the care of the children with only limited assistance from the father; and

   ·That the mother has incurred very significant costs in the conduct of the proceedings in circumstances where there has been “a tsunami of evidence” which supports the mother’s application.

2. The father opposed that part of the mother’s application. In support of that position he submitted that the proceedings commenced upon the mother’s application to change the children’s school.  He submitted he had no alternative but to oppose that application.  He also submitted that he pays child support as assessed.

3. Whilst I accept that there is a large volume of evidence that supports the mother’s parenting application, I am not persuaded that it is appropriate that there be an order that the father pay a contribution towards the mother’s costs in the proceedings. 

4. In my view the mother has not identified any conduct by the father in the proceedings that would justify a departure from the usual rule that each party bear their own costs. Whilst it is the case that I am acceding to the mother’s application that there be no order for the father to spend time with the children, up until the commencement of the final hearing, the position of the ICL, was that there should be an order that Z spend time with the father, albeit on a limited basis.  Accordingly, I am not satisfied in those circumstances that it can be said that there are circumstances justifying an order as to costs. 

5. Therefore the orders I make are as follows:-

   (1)That all previous parenting orders be discharged.

   (2)That the mother have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the children X born … 2003, Y born … 2005 and Z born … 2007.

   (3)That the children live with the mother.

   (4)That there be no orders for the father to spend time or communicate with the children.

   (5)That the mother and the father each keep the other informed of their current email address and notify of any change to that address within 7 days of such change.

   (6)That within 28 days the mother nominate a post office address to which the father may send correspondence, that address to be used by the father only for the purposes of him forwarding to the children a card and gift on the following occasions:-

   (c)  Their birthday; and

   (d)  Christmas.

   (7)That the mother be permitted to inspect any card or gift forwarded to the children or any of them by the father pursuant to order 6 hereof and in the event that she deems such correspondence inappropriate she is not required to pass such items to the children.

   (8)That the mother be at liberty to provide copies of :-

   (a)These orders;

   (b)Reasons for Judgment dated this day;

   (c)Family Report and addendum report prepared by Mr B;

   (d)Psychiatric assessment of Dr C dated 26 May 2016;

   to any of:-

   E.The children’s schools;

   F.The children’s treating medical practitioners, psychologists and counsellor;

   G.Any state or federal agency including but not limited to the Department of Health and Human Services and the police; and

   H.Any other court.

   (9)That the mother be solely responsible for the witness fees and expenses of Ms D.

   (10)That the mother and the father each pay one half for all other witness fees and expenses of the professional witnesses called to give evidence during the final hearing.

   (11)That within 30 days the father pay the mother’s costs as follows:-

   (c)The sum of $2,882 in respect of the hearing on 6 September 2016; and

   (d)The sum of $2,991 in respect of the hearing on 15 May 2017.

   (12)That the appointment of the Independent Children’s Lawyer be discharged.

   (13)That all extant applications be otherwise dismissed.

   (14)That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding three-hundred and seventy-one (371) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 31 August 2018

Associate: 

Date:  31 August 2018