Camoes & Blizzard & Anor
[2018] FamCA 811
•9 October 2018
FAMILY COURT OF AUSTRALIA
| CAMOES & BLIZZARD AND ANOR | [2018] FamCA 811 |
| FAMILY LAW – PROPERTY – where the father seeks orders under s 90SN to vary or set aside final orders on the basis of exceptional circumstances and hardship where the mother retains the two children of the relationship in Country I contrary to an order of this Court – Where the father seeks assistance from the State Central Authority for a return of the children and succeeds at first instant but an appeal court overturns the judgment based upon the views of the parties’ nine year old child – where the Australian orders remain in force and there appear to be no parenting equivalent orders in Country I – where the father therefore continues to have caring responsibility under s 90SN(3) of the Act – where the court finds the circumstances are exceptional relating to the care, welfare and development of the children but that hardship is a difficult issue to establish because the father bases his application on the need to travel to Country I – where the Child Support (Assessment) Act 1989 makes specific provision for departure from administrative assessment where such travel costs are incurred-discussion about the problems of the clash of legislative principles–where the court refuses to exercise its discretion in favour of the father. FAMILY LAW – CHILD SUPPORT – where the assessment was stayed pending determination of the Hague matters but in the interim, the father abandoned his departure application thereby removing the power of the court to continue the stay – where the Child Support Registrar seeks an order discharging the stay ab initio – order made. FAMILY LAW – COSTS – where the father seeks costs of the various applications that he had to bring to enforce his orders – application on an indemnity basis – indemnity basis not justified but costs order made. |
| Acts Interpretation Act 1901 (Cth) Child Support (Assessment) Act 1989 (Cth) Child Support (Departure) Act 1989 (Cth) Child Support (Registration and Collection) Act 1988 (Cth) Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth) |
| Harris & Dewell & Harris [2018] FamCAFC 180 Houlihan and Houlihan (1991) FLC 92-248 Gyselman and Gyselman (1992) FLC 92-279 Masters & Cheyne [2016] FamCAFC 255 Sandrk and Sandrk (1991) FLC 92-260 |
| APPLICANT: | Mr Camoes |
| RESPONDENT: | Ms Blizzard |
| AMICUS CURIAE: | Child Support Registrar |
| FILE NUMBER: | MLC | 8891 | of | 2013 |
| DATE DELIVERED: | 9 October 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 24 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mort |
| SOLICITOR FOR THE APPLICANT: | Berger Kordos Lawyers |
| COUNSEL FOR THE RESPONDENT: | No Appearance |
| SOLICITOR FOR THE RESPONDENT: | No Appearance |
| COUNSEL FOR THE CHILD SUPPORT REGISTRAR AS AMICUS CURIAE: | Ms Johnson |
| SOLICITOR FOR THE CHILD SUPPORT REGISTRAR: | Mills Oakley |
Orders
The father's application contained in the response filed 1 May 2018 seeking an order under section 90N of the Family Law Act 1975 (Cth), is dismissed.
Paragraph 5 of the orders of 3 February 2017 (the stay order) is discharged abinitio.
The mother pay the father's costs of the proceedings fixed in the sum of $18,200.
That the solicitors acting as trustees for the mother pursuant to paragraph 2 of the orders of 23 December 2016 are directed, on behalf of the mother, to pay the solicitors for the father, $18,200 to satisfy the order for costs herein.
That paragraphs 1 and 2 (the injunctions) made in the orders on 23 December 2016 are otherwise discharged.
That a copy of this order together with a copy of the reasons for judgement this day are to be served upon Mr AA, by the solicitors for the father.
The father's application by way of response filed 1 May 2018 is otherwise dismissed.
For the avoidance of doubt, the mother's notice of discontinuance filed in January 2018 shall be treated as a discontinuance of all proceedings.
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 Camoes & Blizzard and Anor 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 8891 of 2013
| Mr Camoes |
Applicant
And
| Ms Blizzard |
Respondent
CHILD SUPPORT REGISTRAR (AS AMICUS CURIAE)
REASONS FOR JUDGMENT
The proceedings before this Court are between Mr Camoes (the father) and Ms Blizzard (the mother). In addition, the Child Support Registrar appeared by counsel as amicus curiae to assist the Court with an issue relating to child support.
The three issues before the Court were:
a)The father’s application under s 90SN (1)(d) of the Family Law Act 1975 (Cth) to set aside or vary a property settlement order made by Stevenson J on 8 December 2015;
b)What to do with a “stay” order made on 3 February 2017 which prevented the Registrar of Child Support from enforcing a child support administrative assessment against the father. The issue was not the discharge of the “stay” but rather, from what date; and
c)The father’s application that the mother pay his costs.
It is convenient to give a simple overview of what could only be described as a sad parenting dispute for two children B (now aged 10) and C (now aged 7).
On 8 December 2015 after several days of a contested international relocation parenting dispute, Stevenson J made the following orders that are relevant to the present dispute:
…
(2)The parties will have equal shared parental responsibility for the children.
(3) The children will live with the mother.
(4) The children will spend time with the father as follows:
(a) Until C attains the age of five years:
(i)Each alternate weekend from the conclusion of school/childcare on Friday until the commencement of school/childcare on Monday;
(ii)Each alternate Wednesday from the commencement of school/childcare on Thursday; and
(iii) On special occasions as defined in Order (5).
(b) From C’s fifth birthday:
(i)Each alternate weekend from the conclusion of school on Thursday until the commencement of school on Tuesday;
(ii)For one week in each Victorian school holiday period as agreed from time to time or to be the first week in default of agreement; and
(iii)For one half of the Christmas school holidays commencing in 2016/2017 as agreed from time to time or to be the first half in default of agreement.
(5)Each of the parties is at liberty to travel with the children to his and her country of origin, or such other international destinations as may be agreed from time to time, on one occasion per year.
…
Alteration of property interests
(9)That both parties do all things and execute all documents necessary to effect the sale, for the best price reasonably obtainable, of the property situate at and known as D Street, Suburb E in the State of Victoria and to distribute the proceeds of such sale as follows:
(a)in payment of agent’s commission and expenses incidental to the sale;
(b) in payment of legal costs and expenses incidental to the sale;
(c)in payment to Citibank of all moneys necessary to discharge the mortgage registered on the title to the property;
(d)in payment of an amount equal to 69 per cent of the balance then remaining to the de facto wife; and
(e) in payment of the balance to the de facto husband.
Stevenson J rejected the mother’s application for permission to relocate to Country I, her country of birth.
The basis behind that decision can be seen in the reasons for judgment which read:
[50]In terms of the proposed relocation, I accept entirely that the mother and her family would make proper arrangements to meet the children’s day-to-day needs. The mother and children could live in the home of the maternal grandparents, until she is able to arrange independent accommodation. The mother and her parents have made enquiries concerning schools for the children. I have no concerns in relation to the physical environment which would be offered to the children in Country I.
[51]The proposed relocation to Country I, however, would impose very significant changes to the children’s lives and require major adjustments on their part. They have lived in Australia for the whole of their lives and know of no other lifestyle. They have never so much as had a holiday in Country I or any other European country. In fact, they have never travelled outside Australia.
…
[70]If the mother and the children live in Country I and the father remains in Australia, there would be obvious difficulties in the children spending time and communicating with him. In my view the father is likely to follow the children to Europe but I am satisfied, on the balance of probabilities, that he would not live in Country I. That being so, there would still be practical difficulties in the children spending time and communicating with him.
…
[79]I accept that the mother would be happier in Country I, at least in the short term, but I share the concerns of the Family Consultant as to the likely impact upon the father and the children of the proposed relocation. The children have an established lifestyle in Australia, from which they will be entirely uprooted on the mother’s proposal. That outcome would most likely place the children and the father in a very unsettled state, with only the mother having a sense of an improved lifestyle. I accept that the mother will be likely to experience difficulties, at least in the short term, in coming to terms with an outcome whereby the children remain in Australia. I have no doubt that she will remain in this country with the children, for whom she wishes to retain primary care. (my emphasis)
Her Honour’s optimism was ultimately misplaced but I also refer below to the decision of the relevant Court of Appeal in Country I (“the Senate”) which brought to an end the attachment of the two children to Australia.
In addition to the parenting orders, Stevenson J also made the property orders. It is sufficient for me to say that the amount of property was very modest and her Honour’s determination amounted to division of 69 per cent of the net cash proceeds of the sale of the parties’ home to the mother and 31 per cent to the father. The mother’s cash entitlement now sits forlornly in a solicitor’s trust account and is the focus of the first of the two issues above. The facts that give rise to the father’s application to re-open the property application are that just months after the orders were made by Stevenson J, the mother was admitted to hospital because of her mental health. No doubt very unhappy with the outcome which restricted her desire to return home to live in Country I, she then brought a new application to relocate as early as March 2016. That application remained dormant throughout a number of other interlocutory application until the mother discontinued it in January 2018. It is trite to say that her self-help at that stage had made the application redundant.
In August 2016, the mother filed one of those interlocutory applications but this time seeking to travel to Country I with the children for a holiday. That was heard in September 2016 by the Senior Registrar. The orders permitted the mother and children to so travel but that if she failed to return, the children were to thereafter live with the father. Whilst there might be some argument about the validity of such an exercise of power, the message was clear that the children would be better off in their father’s care in Australia if the mother did not return. The logic of that can be seen in paragraphs [51], [70] and [79] of the reasons of Stevenson J.
Suffice to say, the mother did not return and the father activated what is colloquially known as the Hague Convention. But, whilst that was under way, he successfully brought proceedings here to:
a)restrain the mother getting her cash entitlement under the property orders on the basis that he was the proper carer for the children as a result of the Senior Registrar’s orders; and
b)stay the child support assessment process arguing that the administrative assessment was unjust and unfair because of his financial position.
I granted injunctions restraining the mother’s access to her entitlement to her money (then held by a lawyer) and stayed the Child Support Registrar’s assessment processes in relation to the collection of child support against the father.
All proceedings in Australia went into abeyance pending the determination of the Country I Court’s deliberations.
On 30 June 2017 a single judge of the District Court ordered the return of the children to Australia but the mother appealed. That appeal was heard by three judges in December 2017 and the mother was successful. That judgment has been tendered in evidence.
The Senate did not make any parenting orders but rather, decided that the mother’s appeal should succeed. To an extent, there is a hiatus for these children with the extant parenting orders in Australia still relevant. The mother conducted the appeal on the basis that she disputed the lower court’s findings about the objections of the children to return to Australia and she raised the “defence” of grave risk of such a return. The Senate heard from B who said that his mother had run out of money and he would rather stay in Country I because otherwise, he would have to live with his father. He said he did not want that. He said the Australian school was not nice and he had not known anyone in Australia. The view taken by the Senate was that at 9 ½ years of age, B “appeared very mature and sensible for his age.” Determining that it was not appropriate to send B back, the Senate held that separation of the siblings was also not appropriate. On 5 February 2018, the District Court’s return judgment was set aside.
The father now faces the prospect of travelling to Country I to see the children. His counsel (Mr Mort) submitted that on the basis of his income, that would be at best, twice per year.
The other important fact is that on 1 May 2018, the father filed an amended application initiating proceedings. Unlike his earlier application, he no longer sought orders for a departure from the administrative assessment of child support. Why that was so remains unclear but there is now no “proceeding” extant under the Child Support (Assessment) Act 1989 (Cth). There is therefore no basis to continue the “stay” order granted in February 2017 pending the determination of the child support dispute.
Counsel for the Registrar submitted that the Court no longer had any power to extend the stay and indeed, the Registrar’s position is that as the father did not proceed with his application (as a result of the amended application), the stay should be discharged ab initio.
Counsel for the father conceded that the stay could not be sustained but that the court had power to discharge it from a variety of dates including the present date, the date upon which the mother pursued child support through the Country I authorities and also from the date when the last assessment ran out in April 2017. These options, it was submitted, arose because of the wide discretion given to the Court.
Relevantly, s 111C of the Child Support (Registration and Collection) Act 1988 (Cth) reads:
111C Stay Orders
(1) This section applies if a proceeding has been instituted:
(a) in a court having jurisdiction under this Act; or
(b) before the Registrar under Part VII; or
(c) before the AAT for an AAT first review; or
(d) under Part 6A or 7 of the Assessment Act.
(2) A party to the proceeding may, subject to the Family Law Act 1975:
(a) in the case of a proceeding instituted in a court–apply to that court for an order under this section; or
(b) otherwise–apply to a court having jurisdiction under this Act for an order under this section.
(3) Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
(4)The court may, by order, vary or revoke an order made under subsection (3).
(5) An order under subsection (3):
(a) is subject to such terms and conditions as are specified in the order; and
(b) operates for:
(i) such period as is specified in the order; or
(ii) if no period is specified–until a decision of the court, the Registrar or the AAT determining the proceeding becomes final.
I consider that a plain reading of the section shows that a stay order under s111C(3) of the Child Support (Registration and Collection) Act 1988 (Cth) is intended to be a holding order until the specific proceedings of the kind referred to in s 111C(1), that is, under the Child Support (Registration and Collection) Act 1988 (Cth), are resolved. Here, that issue was resolved when the father abandoned his claim.
Whilst I agree with counsel for the father that the court has a wide discretion as indicated in s 111C (3) of the Child Support (Registration and Collection) Act 1988 (Cth), context in the Act is very important. The whole tenor of the legislation is to deal with assessments wherever possible by administrative measures. That can be seen in the objects of the Child Support (Assessment) Act 1989 (Cth) in s 4. At first blush, one might wonder how child support could be sought by the mother having regard to what she did in defiance of this Court’s orders and the fact that those orders still remain. However, since 1995, the Child Support (Assessment) Act 1989 (Cth) has removed references to custodial parents and made parents, or more importantly, to use the language of the Family Law Act 1975 (Cth), “eligible carer(s)”, the basis for the assessment system (see s 7B of the Child Support (Assessment) Act 1989 (Cth)). This was to ensure that children were cared for by both parents regardless of any dispute between them.
A discharge of the stay order ab initio gives rise to some daunting prospects. The agency will have to retrospectively pursue the father. With the conclusion of the proceedings relating to the property matters, there will be no extant proceeding under the Family Law Act 1975 (Cth) to which a departure application could be joined and accordingly, any unresolved dispute will have to go through the review and the administrative law process before the parties (or more particularly the father) can come to court; even then it will not be to this Court. The remaining money of these parties means that they cannot continue to involve lawyers. The father still owes his lawyers $150,000. The complexities of the system are self-evident.
Counsel for the father submitted that the father was still entitled to the care of the children but that could not be enforced except in Country I. The basis of B’s statement to the judges (and his guardian ad litem) was that he did not want what this court had ordered yet a reading of the reasons of Stevenson J indicated an entirely different picture. In my view, this court cannot go behind what the Senate has decided.
I find that as the father withdrew his earlier application, and the Senate must be seen to have determined the matter retrospectively, any child support dispute must be a matter for the agency.
Even allowing for the very wide discretion of the court, the legislative intention is clear that these disputes must be dealt with through an administrative process first.
In my view, the father’s application to discharge the stay from any date other than the date it was made must fail.
I turn then to the application under s 90SN of the Family Law Act 1975 (Cth).
The mother was the respondent. In January 2018, she filed a notice of discontinuance of her application for orders (a subject to which I later return). Despite that, the father indicated he was proceeding with his application. The mother did not comply with the rules of court in that she did not provide the court with an Australian address for service. She said she could not do so but of course, that put the father to the trouble of having to serve documents overseas when he should have been able to do that through an agent here. However, that is not a sufficient basis to ignore what the wife said. She filed an affidavit and a financial statement but, as she did not attend the hearing, she could not be challenged on what she was asserting. In any event, for the reasons that follow, I consider it did not matter and her evidence is of little weight.
The father’s application was couched in the alternative. First, he sought a variation or discharge of the property orders and failing that, a costs order against the mother. That accounts for two of the three issues earlier mentioned.
The mother’s evidence can be shortly described. She maintained she was devastated at having to remain in Australia and pointed to the father’s unwilling stance about her taking the children overseas for a holiday. With the benefit of hindsight, the father was right to be concerned about the prospect of the mother not returning to Australia. The closest the mother came to acknowledging that she had not complied with orders was that she said when she arrived in Country I, she realised that her living situation what with her homeless, her indebtedness with the father’s salary declining, and her depression, she had “no other option to provide for the children’s welfare than to remain in Country I”. That unilateral action has little merit particularly after the strong judgment of Stevenson J in which her Honour carefully analysed the needs of the children.
The mother was then critical of the position the father adopted about mediation in Country I. However, it cannot be ignored that the orders of the Senior Registrar were very clear. It cannot also be ignored that at first instant, the mother was unsuccessful in the District Court. Then of course there was the appeal and the mother said that the father “was wholly unsuccessful”. Having regard to the findings of the Senate, I understand the father’s frustration.
Much of what then followed from the mother related to her complaints about the way the matter was conducted by or on behalf of the father in the 2015 proceedings. She turned to her financial position which she described as dire. She has no income and she is currently living off the generosity of her parents. The mother attached letters from agencies in Australia who had something to do with her in relation to violence. Those have no present relevance to any determination. The same must be said of her argument about the value of the parties’ former home; that was considered by Stevenson J in the property dispute.
Prophetically, she said that “both parties are now financially broke” but it must be observed that she was the architect of much of the present dilemma.
The mother’s evidence on the question of the father’s application was therefore largely irrelevant. It did not address the exceptional circumstance that he outlined nor the hardship points to which he referred. She said nothing about her own conduct in relation to the former and in respect of the latter, nothing about how she would ameliorate his travelling problems to have a relationship with the children. I have concluded that although she filed a notice of discontinuance that only related to interim orders and therefore that she was seeking that if he failed in his application, all of the money should be returned to her through a discharge of the injunction.
The father’s outline of case document said:
·The mother’s action in removing the children from Australia on a permanent basis is a circumstance of an exceptional nature relating to the care welfare and development of a child;
·The children are unable to spend time with the father (he has not had time with them since December 2017); and
·The father is suffering hardship as he is unable to travel and will incur costs if he does because he will have expenses.
Some of those assertions are hardly controversial but the question is whether the evidence satisfies the relevant tests such as to empower the court to exercise its discretion.
The relevant provision in the Family Law Act 1975 (Cth) (s 90SN(1)(d)) says that if there is an extant order for property settlement and the court is satisfied that in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the de facto relationship, the child or, where the applicant has caring responsibility for the child (as defined in subsection (3)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order, the court may vary or set aside the order and make another. (my emphasis)
The focus in the section is on two people; first, there is the child and secondly, an applicant who has “caring responsibility”.
‘Caring responsibility” is defined in s 90SN(3) of the Family Law Act 1975 (Cth) to refer to a person with whom the child lives or where a parenting order provides for the child to live with a person or that person has parental responsibility.
The father in these circumstances has an extant order that provides him with parental responsibility. Parental responsibility is defined in s 61B of the Family Law Act 1975 (Cth) to mean all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Both parties were silent on the subject of what involvement the father has in the lives of the children at present save for his reference to the fact that he has not seen them since December 2017. Whilst he might have a responsibility to make decisions about the children, it would seem that there is little, if any, co-operation between the parents. He no longer has power to force their return to Australia. He has no authority over where they live. In reality, he is unable to exercise any of the obligations of parental responsibility as defined in the Family Law Act 1975 (Cth).
Does it make any difference that he is unable to exercise any of the obligations of parental responsibility?
As a matter of statutory interpretation, words should be given their ordinary meaning where possible. However s 15AB(1) of the Acts Interpretation Act 1901 (Cth) provides that:
15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
Extrinsic materials include explanatory memoranda (s 15AB(2)(e) of the Acts Interpretation Act 1901 (Cth)).
The current definition of caring responsibility which includes a parenting order that gives a person has parental responsibility for the child was inserted by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). It is important to note that the definition was inserted in s 79A(1AA) of the Family Law Act 1975 (Cth) which is the equivalent of s 90SN(3) of the Family Law Act 1975 (Cth) when parties are married. Section 90SN(3), in identical terms, was inserted into the Family Law Act 1975 (Cth) in 2008.
The explanatory memorandum for the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) discusses the amendment and reads:
Subsection 79A(1AA) defines a person who has ‘caring responsibility’ for a child for the purposes of subsection 79A(1). The amendment removes the references to residence and specific issues orders and replaces them with references to parenting orders that provide that a child is to live with a person or that a person has parental responsibility for a child. This amendment ensures the more generic description of parenting orders operates.
The father could enforce the parenting orders in Australia if the mother was in the country so to that extent, he still has caring responsibility. He cannot enforce the orders outside of Australia because the relevant state authorities would decline to take action as a result of the determination already discussed. He could go to Country I and seek parenting orders there but I have no evidence of how that would be received bearing in mind the Senate has set out the views of at least B about having to live with his father. That same prospect raises issues because B also said that he would go to Australia for a few days and if that occurred, the issue of the extant Australian order would arise. Does the determination of the Senate mean that if the father did not return the children to Country I, the mother could activate the Hague process? There is no apparent finding of the children having their residence in Country I but the clock is ticking.
One view, although not argued by the father, is that the plain meaning of s 15AB(1) of the Acts Interpretation Act 1901 which would enable the court to examine extrinsic materials such as the explanatory memoranda, can arise where the section is ambiguous or obscure. Absent any of the probably unrealistic possibilities just mentioned, there is little or no prospect of the father being able to exercise the caring responsibility to which the section refers but it could not be said that s 90SN of the Family Law Act 1975 (Cth) is ambiguous or obscure. The second limb of s 15AB(1) of the Acts Interpretation Act 1901 enables the court to search for extrinsic answers where the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable. “Absurd” generally means farcical or nonsensical and “unreasonable” means irrational or perverse. This may be an odd situation if not unique but I could not say that any of those arise here.
Despite the father being unable to exercise parental responsibility, as a matter of statutory interpretation, s 90SN(3) of the Family Law Act 1975 (Cth) should be interpreted according to its ordinary meaning. Thus, the father falls within the definition of a person having caring responsibility.
Section 90SN(1) of the Family Law Act 1975 (Cth) also enables the father to bring the present application on the basis that the children fit within the description. First, the father has to establish “circumstances of an exceptional nature” relating to the care, welfare and development” of the children and secondly, he must show that the children will suffer hardship “if the court does not vary the order” and make another order in substitution for it.
The concept of exceptional circumstances is not defined in the Family Law Act 1975 (Cth). The change of responsibility for the care of children after a property order is not of itself an exceptional circumstance (Sandrk and Sandrk (1991) FLC 92-260). In any event, the father has to show that the circumstances contemplated relate to their care, welfare and development”. Rhetorically, the father’s outline said that the mother’s removal to Country I was an exceptional circumstance because the children could not spend time with their father as had been ordered by Stevenson J let alone the orders of Senior Registrar FitzGibbon but his evidence did not take the matter much further. His affidavit devoted pages to the history and to the difficulties he will face in getting to Country I but nothing more.
The judgment of the Senate referred to “submissions of the parties” but I am unaware of the detail other than from what I can glean from the judgment. There is no evidence about why the circumstances of this case are exceptional relating to the care, welfare and development of the children save that by inference, the mother’s actions in removing them deprives them of the things referred to as their rights under s 60B of the Family Law Act 1975 (Cth).
Nothing in the evidence of the father enables me to conclude that the care of the children is affected by the mother’s actions. Nothing in the evidence enables me to conclude that the absence (because of the tyranny of distance) of the father adversely affects the development of the children because accepting the logic of the Senate, the children, or at least B, saw no benefit to himself in Australia and of course, the Senate accepted that he was mature enough to hold the views he did. I have no understanding of how the younger child’s development has been prejudiced by the absence of her father.
The substance of the father’s argument about the exceptional circumstance here is that the mother had defied the Australian order (but against that, I have the Senate order) and that he will now have to travel to Country I to visit the children (but of course that would be different from any form of relationship that the Australian court contemplated anyway). His financial argument is that his trips will be limited to at best, twice yearly but how that affects the care, welfare and development of the children, I am unable to say. There seems little doubt that the father’s involvement in the lives of the children will remain nominal unless he goes to Country I to live. Thus, even if some financial alteration was made to the property orders, it is difficult to see how the father’s circumstances will change from those parents whose role in the lives of their children changes by virtue of relocation.
Counsel for the father pointed to my observations in the interlocutory hearing and submitted I had found the circumstances were exceptional. However, the present evidence directed to care, welfare and development is missing. Even if I could stretch the language of the section to include an inference that the children benefit from a relationship with their father and that they are presently being denied that, I am left with trying to decide how the limited facts could be said to be exceptional.
In Masters & Cheyne [2016] FamCAFC 255 but in a different context, Murphy J contemplated the words under consideration. His Honour said:
[34] The expressions “exceptional circumstances” and “hardship” must be interpreted by reference to their ordinary meaning but also by reference to the whole of the legislative context within which they are used.[1]
[42] The expression “exceptional circumstances” has frequently been interpreted in a number of different contexts.[2] In ordinary usage the expression “exceptional” means “unusual or out of the ordinary”[3] or “unusual or extraordinary”.[4] It has been said that:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that it is regularly, or routinely, or normally encountered.[5]
[1] See, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382 per McHugh, Gummow, Kirby, Hayne JJ cited in Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1.
[2] See, as an example the cases and circumstances collated by Watts J in Keane v Keane and Others (2013) 50 Fam LR 120, including Khalil & Tahir-Ahmadi (2012) FLC 93-506, at [95] citing in turn Segur v Segur [2010] FamCA 556; State Central Authority v Ustinov (No. 4) [2008] FamCA 987 and Emmett & Emmett (No. 2) [2010] FamCA 57.
[3] Oxford English Dictionary.
[4] Macquarie Dictionary.
[5] Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] QB 198, 208, quoted with approval by Callinan J in Baker v The Queen (2004) 223 CLR 513, 573, cited by Watts J in Keane (above).
I find that the general circumstances here are unusual or out of the ordinary because of the absence of the father-children relationship having regard to not just the findings of the Australian court previously but also the fact that the parties themselves agreed that a change of residence of the children was appropriate if the mother did not return to Australia from her family holiday. It is open to conclude that such a change in the care of the children is likely to have impacted on the care, welfare and development of the children even absent some specific evidence to the contrary bearing in mind that the whole Hague proceedings were conducted on a very discrete point. Apart from the mother’s description of her own impecuniosity and the extraordinary legal costs that the parties agree they have incurred, adding to their impecuniosity, there is little if any other evidence about the impact on the children of the absence of their father. The mother said that the Senate has “ordered for the children to spend time with their father during day time hours with no overnight stays, from which one might conclude that there was a basis to say that the father’s physical presence with the children was important. However, nothing in the orders suggested that to be the case.
With some reservation because of the state of the evidence, I find there are exceptional circumstances here because this is very much out of the ordinary in relation to a parent’s involvement in the development of their children.
The evidence enables me to find there is hardship for the father if the court does not vary the orders because he will have to fund his own travel to Country I. It is his case that the basis to set aside the property orders is founded on hardship “as he is unable to afford travel …to spend time with the children, and will incur significant cost in obtaining orders …to enable the children to spend time with him.”
Of those two concepts, the second is not supported by any evidence any more than the mother’s statement that the courts have already made some form of order. It was the father’s counsel who said that the father would only be able to go to Country I about twice per year. Thus, the submission about the necessity to obtain orders in Country I is not supported by any evidence.
The main argument of the father is that travelling to Country I to participate in the children’s lives is a hardship. Herein lies an added difficulty for him. He was the subject of an assessment of child support and the stay on the collection of the money under that has now been lifted. It is not clear what his current obligation is because the assessment seems to have run out and the stay prevented a further processing of any application by the mother. The father was anticipating another assessment would follow which was the reason submissions were put to fix the date from which the stay was to be removed.
Under the Assessment legislation, the father has a right to ask the registrar for a review. That right can arise at any time when an administrative assessment is in force (and that does not seem to be the case yet) and the relevant parent considers that because of the “special circumstances” that exist, the assessment should be departed from. The parent can ask for that administrative review (see s. 98B of the Child Support (Departure) Act 1989 (Cth))
Before the court should embark upon varying or setting aside the property matters, it seems to me this is a child support matter. I raised with counsel the obvious degree of complexity and difficulty in the father having to go back to the administrative process when there was no extant proceedings in a court and he acknowledged that the process would be difficult. However, that also assumes that his case is not obvious and straight forward having regard to the legislation. S 98C(2) of the Child Support (Departure) Act 1989 (Cth) provides that the registrar must contemplate the same grounds as a court would in dealing with an application under s 117(2) of the Child Support (Departure) Act 1989 (Cth) so I turn to that.
Section 117(2) of the Child Support (Departure) Act 1989 (Cth) sets out the available grounds which relevantly here includes, in the special circumstances of the case, the costs of maintaining the child are significantly affected …..because of high costs involved in enabling a parent to spend time with, or communicate with, the child. (my emphasis)
Unfortunately, it does not get any easier for the father because s 117(2B) of the Child Support (Departure) Act 1989 (Cth) provides that a parent’s costs can only be high if the costs that have been, or will be incurred, total more than five per cent of the amount worked out under the formula which takes into account the number of days the father cares for the children.
Previous authorities in interpreting this provision have said that it is the cost of making the contact available rather than the costs of his enjoyment of his time with the children, that s 117 of the Child Support (Departure) Act 1989 (Cth) addresses (see Houlihan and Houlihan (1991) FLC 92-248 and Gyselman and Gyselman (1992) FLC 92-279). However, it seems to me that in circumstances where the father has to not only fly to Country I but also provide accommodation and travel within Country I, the costs of “enjoyment” pale into insignificance. It may also be that the 2006 amendments to the Family Law Act 1975 (Cth) which focused on responsibilities of parents, might mean that a different focus to the two authorities should be contemplated. That said, if the father is to be in Country I for a significant time because of his importance to the children, or indeed flies them back to Australia for holidays, all of those costs fall within enabling him to spend time with, or communicate with them. Although I am not dealing with any such application, it is clear that the words in s 117 of the Child Support (Departure) Act 1989 (Cth) are directed to the special circumstances of the case. Having found the circumstances here are not just special but exceptional, I would not expect an administrative process to take a pernickity approach about how much is spent. With that view in mind, I return to s 90SN of the Family Law Act 1975 (Cth).
If, as I have found, the father satisfies each of the requirements of s 90SN of the Family Law Act 1975 (Cth), there is still the difficulty that the variation or setting aside is an exercise of discretion. If I was to guess (as there was no evidence) about how much would be spent in the father resuming and maintaining his relationship from afar, I would have no idea how many years of those expenses to take into account. I could not be expected to guess at the vagaries of airline travel and indeed whether the children would at some stage be coming to Australia. I have no idea how much it would cost to live in Country I twice per year and what assistance, if any, the mother would provide the father. On the other hand, this exercise could be undertaken with the Child Support Agency if any assessment issues.
Because of those matters, I decline to vary or set aside the property orders.
The father’s application must fail save that he also sought costs in the alternative to the orders proposed under s 90SN of the Family Law Act 1975 (Cth). The mother set out in her affidavit all of the hearings in Australia and how she had spent significant funds being represented. On any reasonable view, she was the cause of the proceedings because she did not accept the finality of the Australian Court’s determination that it was best for these children to have a relationship here with both parents. The mother would appear never to have had any intention of returning to Australia after agreeing to the orders that she did. She must be seen to have been the cause of the enormity of this litigation and the father’s need to participate in it was vindicated because the court at first instance in Country I agreed with his position and it would seem that the only basis to alter that was what we would call in Australia, new evidence. Any argument that the mother has to suggest that she is a victim of the father’s “financial violence” has little to commend it.
The father’s outline of case referred to the litigious history particularly subsequent to the orders of the Senior Registrar. Before that order, there were proceedings that required the sale of the former home of the parties consistent with the orders of Stevenson J. The father argued that the mother had failed to comply with court orders in a number of aspects (s 117(2A) of the Family Law Act 1975 (Cth)) but I cannot make an order in respect of the sale of the home dispute because the orders which were made on 7 June 2016 at the request of, and with the consent of, both parties. No reference was made to any costs dispute and the interlocutory application that brought the dispute before the court was otherwise dismissed. There is therefore no basis to make any order for costs arising out of that application. The orders thereafter are quite different.
The mother had not complied with orders the most significant of which was that of the Senior Registrar. It is of significance that it was made with her consent but also that of the father. It could hardly be said that he did not know what he was doing because he was represented by counsel. However, more significant is the fact that the Independent Children’s Lawyer expressed concerns about the children’s travel because of the mother’s mental health. The father joined in that “notation” to the orders by saying he shared the concern but he still agreed for her to travel with the children.
On 11 November 2016, the father filed an application in a case seeking injunctions against the mother’s access to her property settlement entitlements and he sought that he have access to monies from the sale to prosecute the Hague matters. On 23 November 2016, Thornton J dismissed that application. Her Honour said:
[19]Section 114(2A)(c) of the Family Law Act1975 (Cth) (“the Act”) enables the Court to provide a discretionary remedy. An order should only be made if it is proper and the onus is on the applicant to establish the basis for the making of an order.
[20]There is no evidence in the applicant’s affidavit that he proposes to travel to Country I to collect the children and no evidence of the quantum of costs which might be incurred by the father in pursuit of Hague convention proceedings. There has been no offer of an undertaking as to damages.
[21]There is already an order made by the Senior Registrar by consent of the parties for the sum of $10,000 to be held on trust from the proceeds of sale. However settlement is not due until 6 January 2017 and the money cannot be released to the father under that order until it becomes available from the settlement, it would appear.
Thornton J reserved the questions of costs because further applications were foreshadowed. To the extent that the father now seeks costs arising from that hearing, I could not find the circumstances unusual such as to depart from the principle that each party pay their own costs. The father was largely unsuccessful but made clear that he intended to pursue more applications. That led to the father seeking more comprehensive orders but even those were said to be “pending the completion of the Father’s Section 90SN Application”. It would seem that no substantive application was filed of that nature until after the November hearing.
On 23 December 2016, I heard an urgent application about the sale proceeds of the parties’ former home and reserved costs to the next return date of 3 February. On that return date, I reserved the questions of the parties’ costs to the trial. The unfortunate situation that arose thereafter was that everything had to be held in abeyance depending upon the outcome of the Hague proceedings. When I pressed counsel for the mother during one interlocutory hearing what “defence” the mother had intended to adopt for the Hague proceedings, no mention was made of what is now the reality, the wishes of B.
The father has incurred significant costs. His counsel tendered a “costs notice” which indicates that he has run up over $330,000 in legal costs in Australia and still owes his lawyers here somewhere around $150,000. Those costs have been calculated on the basis of the contractual arrangement between the father and his practitioners.
Section 117 of the Family Law Act 1975 (Cth) provides that in proceedings under the Family Law Act 1975 (Cth), each party shall bear their own costs unless there are circumstances to justify a departure from that principle. If such a circumstance can be shown, the court must take into account the matters set out in s 117(2A) of the Family Law Act 1975 (Cth) before making any order.
The mother’s assurance of an intention to return to Australia by consenting not only to the order but specifically to the fact that the father could have the main care responsibility for the children if she did not, must be seen as indicative of conduct as a litigant rather than a parent in misleading the court. In her affidavit, she justified her refusal to return as I have described it. In my view, she knew that, having been refused permission to relocate for the sake of the children’s relationship with their father and her subsequent failure to succeed in a second attempt at such an application must be seen as indicative of the fat that she knew that her return to Australia would mean that she could not live permanently with the children in Country I.
The fact that the Senate upheld her argument which had failed at first instance, based on what was B’s desires, does not assist her much because the father was apparently not involved in any discussions about that and it seems to fly in the face of what the child was saying in Australia to an expert social scientist. No doubt it could be said that after such a period of time in Country I and absent the father, B had changed his mind.
The mother’s failure to comply with court orders and the consequences that flowed were such as to require the father to litigate when he should not have had to do so. That is a justifying circumstance here to depart from the principle that each party pays their own costs.
The father’s costs application appears to be indemnity based. Leaving aside the uncertainty of that arising from the absence of any costs agreement as required by the rules, the father has to show that the circumstances to make such an order are exceptional. In the recent decision of Harris & Dewell & Harris [2018] FamCAFC 180, the Full Court said this:
[23]In Kohan and Kohan,[6] the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a “very great departure from the normal standard”.[7] In the later decision of the Full Court in Prantage & Prantage,[8] Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.
[24]That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation.[9]His Honour said that an order for indemnity costs should “be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”.[10]
[25]The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd(No 2),[11] referred to by their Honours in Prantage (at [102] – [103]). Lindgren J said that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.”[12]
[26]Of course, in proceedings under the Act, an overriding “usual rule” is prescribed by s 117(1), namely that each party bears their own costs. The degree of departure between that “usual rule” and a result where one party bears the totality of the other party’s costs can be seen to be all the greater. (original emphasis)
[6] (1993) FLC 92-340 (“Kohan”).
[7]Kohan at 79,611.
[8] (2013) FLC 93-544 (“Prantage”).
[9] (2001) 179 ALR 406 (“Arundel Chiropractic”).
[10]Arundel Chiropractic at [40].
[11] (2001) 109 FCR 77 (“NMFM Property”).
[12]NMFM Property at 92 [56].
Despite finding that there were exceptional circumstances here in relation to the matters earlier discussed, it is difficult to see any evidence that would enable me to make an indemnity costs order here. Both parties have incurred significant costs and I understand that the mother’s solicitors in Australia have some form of claim against her entitlement. This litigation was a desperate piece of action by the mother but not one from a costs point of view that I could say was so different from what many litigants would have done such as to justify an indemnification of all that the father has incurred.
However, having concluded that the circumstances do justify an order for costs, it is important to consider the matters set out in s 117(2A) of the Family Law Act 1975 (Cth).
The parties have very limited financial circumstances and whatever orders are made here will only eat into their depleted capital. The mother says she has nothing but that is not a basis not to make an order for costs bearing in mind here that she has a property entitlement that is presently sitting in a trust account.
The conduct of the parties as litigants has been adequately canvassed above and in my view, the mother must take responsibility for the husband having to enforce not just his rights but his obligations as a parent. In addition, the mother’s persistence in arguing that she should return to Country I was something that was contemplated and for reasons that remain unclear, the father consented to the order presumably anticipating that the Hague Convention would protect his children. The mother had legal representation when she consented to the order so I have presumed she knew the consequences of her actions. That approach as a litigant is not to be encouraged.
There are no legal aid considerations here.
Section 117(2A) of the Family Law Act 1975 (Cth) permits the court to take into account any other matter that it considers appropriate in the circumstances. The mother has caused the father to incur significant costs where he had the orders of the court on his side. To ignore his rights to enforce his orders would not be just in this case.
Absent some indication of what the costs should be, I only have the father’s costs schedule to work from. There was reference to “scope” and disbursements which had included past counsel’s fees but also filing fees. I do not intend to guess at what the scale costs were but I consider that I can extrapolate that material to make an informed decision as to what contribution the mother should make towards the father’s costs but based on the court rules’ scale.
Allowing scale costs for counsel’s fees for the hearings of 4 November 2017, 23 December 2017, 3 February 2018 and 24 September 2018, and allowing solicitors fees associated with those hearings including preparation of documents, that only leaves disbursements. The father referred to the disbursements having included counsel’s fees but there were filing fees which I can calculate from the scale. In my view, the appropriate order is that the mother pay $18,200 towards the father’s costs.
The costs should be paid from the trust funds held for the mother and otherwise, the injunction should be discharged as there is no further role for the court.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 October 2018.
Acting Associate:
Date: 9 October 2018
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