Calcott & Arnis (No 3)
[2023] FedCFamC2F 1715
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Calcott & Arnis (No 3) [2023] FedCFamC2F 1715
File number(s): PAC 1087 of 2015 Judgment of: JUDGE STREET Date of judgment: 20 December 2023 Catchwords: FAMILY LAW – PARENTING – costs orders – parent died – no order as to costs Legislation: Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)
Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 20 December 2023 Place: Sydney Counsel for the First Respondent: Ms Saw Solicitor for the First Respondent: SCB Legal Counsel for the Second Respondent: Ms McConaghy Solicitor for the Second Respondent: Christina Lam & Associates Counsel for the Independent Children’s Lawyer: Mr Brickwood Independent Children’s Lawyer: Shedden & Associates ORDERS
PAC 1087 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AND: MR ARNIS
First Respondent
MS B CALCOTT
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
20 DECEMBER 2023
BY CONSENT AND ON A FINAL BASIS, THE COURT ORDERS THAT:
1.That all prior parenting orders be discharged.
Parental Responsibility
2.That the Second Respondent, Ms B Calcott have sole parental responsibility for the children, X, born 2009, and Y, born 2012 (‘the children’).
Live with
3.The children are to live with the Second Respondent.
Spend time with
4.That the children may spend time with the First Respondent in accordance with their wishes and as arranged with the Second Respondent.
Communication
5.The children shall communicate with the father in accordance with their wishes.
6.The First Respondent and Second Respondent shall communicate via the telephone application ‘AppClose’ only.
Restraints
7.That each party is restrained from:
(a)Denigrating the other parent, or the late Ms Calcott, or Ms B Calcott or Mr E or a member of the party’s household to or in the presence or hearing of the children, including via social media;
(b)Discussing the family law dispute and showing the children any court documents, correspondence between their lawyers, and other documents relating to or associated with these proceedings, save and except to allow the Second Respondent to communicate the nature and effect of these Orders to the children.
(c)Conveying messages through the children and or using the children as a go-between to convey messages to each other;
(d)Exposing the children to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the Second Respondent, the First Respondent or any other member of either party’s household.
General
8.That the parties keep each other informed of their current telephone number and email address, with them to advise the other party within forty-eight (48) hours of their email address or telephone number.
9.That the First Respondent be at liberty to send cards and presents to the children by post on their birthdays and at Christmas.
Passports
10.That the Second Respondent, Ms B Calcott be permitted to obtain Australian Passports for the children and she be permitted pursuant to section 11 of the Australian Passports Act 2005 (Cth) to do all acts and things and sign all documents necessary to apply for and maintain current Australian passports with respect to the children without the father’s consent.
11.That the Second Respondent shall retain the children’s passport.
12.For the purposes of section 65Y of the Family Law Act 1975 (Cth), the second respondent is permitted to take or send the children X, born 2009, and Y, born 2012 from the Commonwealth of Australia.
13.For the purpose of s11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children X, born 2009, and Y, born 2012 are permitted to have an Australian Passport, and the father’s consent to the children having an Australian Passport is not required.
14.The Second Respondent is permitted to apply for and renew an Australian Passport for the children X, born 2009, and Y, born 2012 at the expense of the Second Respondent.
Other
15.That the First Respondent, subject to the children’s wishes and their written invitation, is at liberty to attend school functions to which parents are invited and attend sporting, school, or extra-curricular events that the children participates in including their sporting events including his sporting games and training.
16.That all outstanding parenting applications as between the parties be hereby withdrawn and dismissed.
17.That the Independent Children’s Lawyer will meet with the child to explain these Orders within 14 days from the date of these Orders and thereafter shall be discharged.
18.That pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
19.That pursuant to Sections 62B and 65DA of the Family Law Act 1975 (Cth) 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 the 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.
THE COURT ORDERS THAT:
20.Leave is granted to the solicitors and counsel for the first respondent to withdraw from the proceedings.
21.The Court declines to make a costs order in favour of the ICL.
22.The Court declines to make a costs order in favour of the second respondent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were commenced on 12 March 2015, relevantly, still involving parenting issues, and were fixed for final hearing commencing today. A tragedy occurred recently, with the loss of the two children’s mother, and their half-sister stepped into the role of seeking an order for parental responsibility and looking after the two children.
At the commencement of the hearing this morning, the Court raised with Mr Arnis why was it the case that he had not contributed to the cost of the family report which was prepared as a result of the loss of the mother, and there was an order in place for the sharing of those costs. Mr Arnis identified that he could not afford it and said that he has recently lost his job and is currently not working. The Court has accepted those statements by Mr Arnis.
The parties were then the subject of observations by the Court as to a potential way to find a resolution in respect of the proposed orders advanced by the ICL. Much to the great insight of the parties as to the best interests of the children, consent final parenting orders 1 to 19 have now been made by the Court. The Court heard from the ICL and ICL’s counsel that they are in the best interests of the children. The Court had all the material that had been filed and the case outlines by the ICL and the second respondent, as well as the second respondent’s material referred to before it for the purpose of being satisfied it was appropriate to make those parenting orders.
The history of the proceedings were such that after pronouncing those orders as being appropriate and in the best interests of the children, the Court identified that it had contemplated adding a notation to the orders in respect of the non-compliance and unsatisfactory history of the proceedings. The Court did so in the context of trying to identify the importance of insight for Mr Arnis in relation to his past conduct and to assist him in ensuring a greater capacity to engage with his children in terms of listening to them and validating their feelings and ensuring that he avoided seeking to engage in blame for the past and the period during which he has not had access.
The Court identified the contraventions or failure to comply with repeated orders in that regard, but the Court did so in the context of trying to assist the father glean a level of insight in relation to the past and his behaviour and his accountability for that behaviour in the context of trying to ensure that he is able to discharge effectively his parenting responsibility and obligations as a result of the orders made in the interaction that he may have with his children. Those orders provide for the children to spend time with and communicate with the father, effectively, in accordance with their wishes, but this is in the context of a complete tragedy for the children where they have lost their primary carer, the mother.
On one view, one can understand the initial stance by the father that, with the loss of the mother, he should undertake the parenting responsibilities, and his contested parenting proceedings with the mother prior to her passing away certainly involved a desire to have significant and meaningful time with the children. While he has not demonstrated the greatest capacity to comply with the Court orders, he has attended the hearings and he has attended today, again, trying to advance his relationship with the children.
It was for that reason that the Court reflected on the best way forward, that a notation to the orders might not necessarily put in a fair context the whole of the history, and that it was better to assist the father by making the observations about his past behaviour with the intention of trying to assist him moving forward in understanding importance of how he interacts with the children, not criticising the mother or, for that matter, their half-sister, and trying to ensure they are not exposed to any family violence, and to try and nurture their prospering and achieving the best possible versions of themselves as they complete their childhood.
At the end of making those observations, the ICL and the second respondent asked the Court for costs. In relation to the ICL, the ICL identified a limited costs order in respect of the second respondent given her limited duration of proceedings, and in an amount of approximately $2,700 and an amount of approximately $5,600 in relation to the first respondent. In relation to that application, the Court has to determine that there are circumstances that justify it in making a costs order under section 117(2A). It is the case that the ICL has played an important role in assisting the Court and the parties in this case. That is nearly always the outcome with skilled and competent ICLs and counsel. Nonetheless, the Court has a discretion in that regard.
The Court has to take into account the considerations in section 117(2A). The financial circumstances of the first respondent being unemployed and not having a job are of overarching concern in the context of whether or not there are circumstances that justify the making of an order in the present case in favour of the ICL. It is the case that the first respondent had the benefit of assistance through Commonwealth funding as a result of a section 102NA order, which was the subject of a grant of leave to withdraw as a result of an inability to obtain adequate instructions. That is not a factor that weighs in favour of the making of a costs order given that the proceedings have now resulted in final consent parenting orders.
The conduct of the proceedings is a more complex issue, which the Court will expand upon in a moment. However, even accepting that the conduct by the first respondent has not assisted the expeditious determination of the parenting proceedings, the Court does not regard that conduct as outweighing the importance of the limited financial circumstances of the second respondent. The second respondent has throughout engaged with this court, identified a level of cooperation, even though it was clear he did not wish to do so, and listened to the Court.
Whilst the Court has, on a number of occasions prior to today, in transcripts which this Court has reviewed, encouraged the father to try and complete and undertake the tasks that he was the subject of orders facilitating so as to originally address meaningful relationship while the mother was still alive and, subsequently, the tragedy and the importance of his role as a father for the two children, given the loss of their mother, the respondent father has participated in listening to the Court, even though he may not have complied with the Court’s orders.
Costs issues are not an occasion upon which to determine substantive issues. The father has identified reasons for non-compliance with supervision and with drug testing, and also in relation to payment for the further family report as being due to his financial circumstances. The Court does not propose to go beyond the identification that has been made that his circumstances are clearly of a necessitous kind when he now has no job, which he lost about a month ago. The Court is not giving the first respondent a commendation for how he has behaved in the proceedings, but is not of the view that his conduct, in all the circumstances, is one that justifies the making of a costs order as sought by the ICL.
In relation to the proceedings being necessitated by a failure of the party to comply with the previous orders, the Court cannot come to such a conclusion. These proceedings were, in part, necessitated by the loss of the mother. In relation to the outcome of the proceedings, whilst it is correct that there has been a different outcome from that originally sought by the father, the children are at a different age from when these proceedings were commenced. That different age has a material impact on the different outcome. These are not proceedings where it could be said that one party was wholly successful or one party was wholly unsuccessful. On one view, the most sensible order that could possibly have been made is the subject of the consent orders. I do not regard that as reflecting an outcome of the first respondent being wholly unsuccessful. I regard it as reflecting both the first and second respondents accepting the best possible outcome for the two children and, to that extent, both parties were successful in prioritising the best interests of the two children.
There has been no issue raised under section 117(2A)(f) in relation to the ICL and, in relation to section 177(2A)(g), the other matter that the Court considers of considerable relevance is that the children now only have one parent able to undertake what is still a very important role in helping them advance through their childhood to the extent, in accordance with their wishes, that they engage with the father. The Court regards that factor as a further factor that weighs heavily against the making of a costs order as sought by the ICL. The Court is not satisfied there are circumstances which justify the Court making an order in favour of the ICL and it is for these reasons the Court declines to do so.
In relation to the second respondent, Dr McConaughey, properly took the Court through the history of the matter, identified the seeking of an indemnity costs order in the order of $18,500 and also sought, in the alternative, party-party order in the order of $16,700. Dr McConaughey identified that the second respondent has undertaken an important and significant responsibility in terms of the sole parental responsibility for the two children, and has been making significant outgoings in relation to the two children in that regard. However, in relation to the financial circumstances, on the submissions of Dr McConaughey, both the second respondent and her partner are employed, unlike the second respondent who has identified he lost his job about a month ago.
The financial circumstances are ones that the Court regards as of considerable weight in relation to whether or not the circumstances justify the Court in making an order under section 117(2A) in the present case. Dr McConaughey identified the recent withdrawal of the lawyers in respect of the section 102NA order and the Commonwealth funding. It is not a matter of itself that gives rise to a reason why a costs order should or should not be made. The Court does not regard the difficulty in obtaining instructions, which no doubt gave rise to the withdrawal of the lawyers, as a matter of itself that weighs in favour of there being circumstances that justify making a costs order.
In relation to section 117(2A)(c), the Court was well alive to the potential criticism available in relation to the first respondent in respect of his conduct in the proceedings, which is the reason why the Court identified and reflected on whether there should be a note added to the consent orders in that regard. Not by reason of trying to chastise the father but, rather, with the intention and hope of assisting him understand the importance of his role in having insight in relation to listening to his children and validating their feelings and being the best parent he could be. There are obvious limitations in relation to the best parent he can be, but that does not mean that he is not still the children’s father, and he has continued through these proceedings to attempt to play a role so that he can interact with his children.
The Court does regard it as unfortunate that there has not been compliance with the earlier procedural orders and squarely identified that concern in reflecting upon the reasons as to why it did not make a note at the end of the orders. However, the first respondent identified part of his failure to comply as being due to his financial circumstances. The Court accepts that the circumstances of the first respondent are not substantial and, given the loss of his job, can be described as necessitous. There is weight in the criticisms that Dr McConaughey referred to in both the original family report and the most recent expert report in respect of the failure by the father to fully engage and failure to reflect an understanding as to why he would take the steps that were being directed.
There is also substance in the criticism as to the tardiness in pursuing the men’s behavioural change program. The Court notes, however, that that was the very topic that the Court also raised with the first respondent in the context of the comments it made after being satisfied it was appropriate to make the consent orders, and identified a level of satisfaction that Mr Arnis has the insight to take forward and complete that course to assist him in his parenting responsibilities and his interaction with the children.
The Court does not regard the movement to the position identified in these consent orders as a position that could have been achieved at the time the proceedings were commenced. At that stage, in 2015, the children were much younger, there was no prospect of a Court making orders of the kind that is has made today in respect of both children. The events that have unfolded through the proceedings, and the removal of one party and joinder of another, are all the result of an incredibly sad tragedy for the two children.
Whilst the Court accepts there is considerable substance in Dr McConaughey’s criticism about the conduct of the father in relation to the proceedings, the Court does not regard that factor of itself as justifying the making of a costs order, and it does not outweigh the significant factor in relation to section 1172A(a) that the Court must also take into account in considering whether it is appropriate to make a costs order. The Court is also required to take into account whether the proceedings were necessitated by the failure of one party. The Court does not accept that the proceedings can be characterised as necessitated by the conduct of the father.
While there have been failures, there have also been surrounding circumstances that have given rise to further steps that, inevitably, were required. The Court does not regard section 117(2A)(d) as weighing in favour of the making of a costs order. In relation to section 117(2A)(e), the Court has already identified why it is of the view that neither party can be said to have been wholly unsuccessful or wholly successful. Section 117(2A)(e) does not weigh in favour of the making of a costs order. There is no issue that has been raised in relation to section 117(2A)(f) by the second respondent. Beyond the changed outcome to which the father agreed, today that consent by the father reflects insight as to prioritising the best interests of the children. It is not a factor that weighs in favour of making adverse costs order.
Turning to section 117(2A)(g), the other mater that the Court considers of considerable relevance in the present case is the loss of the children’s mother as a factor that, in the circumstances, has an obvious impact on how the proceedings have been conducted by the father. It is understandable that the father was of the view that he should be the carer and have sole parental responsibility for the children when they lost their mother. It is understandable that the father, without greater insight, may have pressed for such a position. However, the father today has identified considerable insight in consenting to orders that give rise to a very different position. It is not one which the Court regards as merely lip service by the father.
The Court regards the father’s willingness to consent to these final orders as showing real insight as to a level of understanding as to his past behaviour and the importance of the future of the children in prioritising their best interests. Taking all those factors together, the Court is not satisfied that there are circumstances that justify the Court in making a costs order in either form as sought by the second respondent. It is for these reasons, those applications for costs were refused.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of Judge Street. Associate:
Dated: 20 February 2024
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