CAULSON & KINGSLEY

[2012] FamCA 949

FAMILY COURT OF AUSTRALIA

CAULSON & KINGSLEY [2012] FamCA 949

FAMILY LAW – CHILDREN – where the father has repeatedly failed to attend various court events – where the father withheld the child on the last occasion he spent time with her – where orders subsequently made for supervised time only – where the father has failed to avail himself of that time with the child – where the child has witnessed family violence in the father’s home – whether it is in the child’s best interests to spend unsupervised time with the father – where orders made that the child live with the mother, that the mother have sole parental responsibility for the child and that the child spend supervised time with the father.

FAMILY LAW – COSTS – where the mother seeks an order that the father pay her costs of and incidental to the proceedings – where the mother was wholly successful – where the father has repeatedly failed to appear at various court events – where father ordered to pay the mother’s costs of and incidental to the proceedings in this Court.

Family Law Act 1975 (Cth)

APPLICANT: Ms Caulson

RESPONDENT: Mr Kingsley

INDEPENDENT CHILDREN’S LAWYER: Ms Bell

FILE NUMBER: BRC 9938 of 2011

DATE DELIVERED: 12 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 12 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ehlers

SOLICITOR FOR THE APPLICANT: G R Brown Solicitors

THE RESPONDENT: No appearance

INDEPENDENT CHILDREN'S LAWYER: Legal Aid Queensland

Orders

UPON THE UNDERTAKING of the solicitors for the mother that they shall forward to the father a copy of these orders and reasons when they issue to the father’s last known address

IT BE DECLARED THAT

The presumption of equal shared parental responsibility is rebutted in the best interests of B born … July 2001 (“the child”)

IT IS ORDERED THAT:

1. The mother be solely responsible for all major long-term issues in respect of the child as that expression is defined in the Family Law Act 1975 (Cth).

2. All previous parenting orders are discharged.

3. The child B born … July 2001 live with the Mother.

4. The child spend time with the father on a supervised basis at the C Town Contact Centre unless otherwise agreed between the parties, such time to occur for the maximum number of occasions each week and for the maximum period on each occasion as such Centre can facilitate, and that the costs of such Contact Centre be shared by the parties.

5. The Father pay the Mother’s costs of and incidental to these Family Court proceedings since transfer from the Federal Magistrates Court of Australia as agreed and failing agreement as assessed.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. Upon expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.

4. 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.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9938 of 2011

Ms Caulson

Applicant

And

Mr Kingsley

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter came before me this morning at the callover of matters awaiting trial. It had been referred to that callover by a Registrar.  The substantive proceedings involve applications for parenting orders in respect of the child B (“the child”) born in July 2001.  The child is 11½ years old. 

2. At the callover this morning the mother, through her counsel, supported in this respect by the Independent Children’s Lawyer, sought that this Court make orders in terms of the mother’s Amended Initiating Application filed 7 November 2012.  The basis for those orders was, in essence, that this morning’s non-appearance represents the sixth court event at which the father has not participated.

3. Included among those events in which he has not participated are the scheduled interviews for the preparation of a Family Report at the instigation of the Independent Children’s Lawyer.  Those interviews were scheduled for May this year. 

4. No communication has been received from the father by the Independent Children’s Lawyer in respect of his non-attendance at that time including, for example, any request by him for any rescheduling of those interviews.  That might seem, of itself, remarkable and important, given that, as any litigant (self represented or otherwise) in this Court knows, the Family Report is an important means by which the Court receives evidence independent of the parties. 

5. When that evidence is likely to pertain to a child of B’s age and to examine her views about her own relationship with her parents, the importance of attendance at those interviews becomes all the more evident.

6. The last of the six events in which the father has not participated is at the callover before me this morning. 

7. The dispute between these parents has a long history.  Buckley J made orders in this Court, now some seven years ago.  Subsequently, orders were made in the Federal Magistrates Court, by Purdon-Sully FM. On the basis of evidence before her Honour, she suspended all orders that would see the father spending time with the child.  Those orders were made in November last year in circumstances where it was necessary for the mother to institute proceedings for a recovery order consequent upon the father failing to return the child at the end of her time with the father.

8. Her Honour made orders for supervised time and, I note, a section 11F report had been prepared by the family consultant, Mr D.  The orders contemplated the father spending supervised time at a contact centre. 

9. Initial arrangements were made at the Gold Coast Contact Centre, but, subsequently, the supervision was transferred to the C Town Contact Centre.  The mother deposes to having undertaken her intake responsibilities at that contact centre on 12 January 2012. 

10. Again, the father has failed to avail himself of the opportunity to participate in the requisite intake necessary to facilitate supervised time between he and the child taking place at that contact centre. The evidence does not reveal any attempts made by the father to contact the contact centre or to facilitate the holding of the requisite interviews and the balance of the processes required. 

11. It seems from what has fallen from both counsel for the mother and Ms Bell, the Independent Children’s Lawyer, that many, if not all, of the difficulties most recently experienced emanate from the father’s current relationship. 

12. There is currently, it is said, an arrest warrant outstanding for the father’s de facto partner in respect of an assault alleged to have been perpetrated by her upon the mother.  The police have advised the mother that they are still looking for that person, but as yet have been unable to contact her.

13. The father had, in the past, instituted proceedings in respect of family violence in the state Magistrates Court.  Those proceedings were dismissed as frivolous or vexatious and the father was ordered to pay the mother’s indemnity costs.  Those costs in an amount of slightly less than $9000 remain outstanding and have been outstanding since February 2011.

14. The orders made by Purdon-Sully FM also contemplate there being telephone communication between the child and her father.  This has not occurred. 

15. A family report writer, Mr E, refers (unsurprisingly, as it seems to me) to the child’s feelings of rejection resulting from that lack of contact between her father and her. Mr E opines that this generates feelings in the child which Mr E further opines, causes the child to express antipathy towards her father and opposition to spending time with him.  In that respect, the child told Mr E that the cessation of time with her father is a good thing. 

16. Troublingly, but also tellingly, evidence obtained by the Independent Children’s Lawyer from Ms F at the child’s school indicates that, in 2011, absences from school were associated with the child’s distress in and about time with her father.  During that year, the distress had intensified and, on one occasion, the child refused to go with her father and it was necessary for the school to enlist the assistance of the Department of Child Safety.

17. Since the cessation of time (through the father’s choice, it might be emphasised) from the end of 2011 the school reports no issues with the child and a significant lessening of her distress and anxiety.  Her academic progress has been satisfactory during that time. 

18. The child has been receiving counselling from Ms G at the J Centre.  One might think that the counselling can be seen as more generally directed towards the child being the subject of significant conflict between her parents, but also, the evidence reveals the child witnessed the alleged assault by the father’s de facto upon her mother and has also, at least according to her report to Mr E, witnessed family violence as that expression is now defined between the father and his partner.

19. The counselling conducted by Ms G at the J Centre has embraced the time when the child was spending periods of time with her father and the time since those periods of time have ceased.  Ms H, consistent with the evidence of Ms F, reports a lessening of the child’s anxiety during the period in which time with the father has not occurred. 

20. It seems to me plain from the matters to which I have just referred, not least of which is the apparent unwillingness of the father to participate meaningfully in the child’s life that the presumption of equal shared parental responsibility is rebutted in the child’s best interests.

21. A decision about her best interests is, then, at large in the sense that it is not referenced to the powers contained in section 65DAA of the Family Law Act 1975 (Cth) (“the Act”).

22. It will be plain from what I have already said that a number of the Statutory Considerations are relevant (despite the truncated nature of these proceedings), to any orders to be made by this Court. Those orders must not only be made with the child’s best interests as the paramount consideration, but that issue must be determined by reference to section 60CC of the Act within the context of the Objects and Principles outlined in Part VII of the Act.

23. Plainly enough, the Primary Consideration pertaining to the need to protect the child from physical, but more importantly, psychological harm from being exposed to family violence is uppermost amongst the considerations relevant here. 

24. Whilst the opinion of Mr E is that the child may well benefit from a meaningful relationship with her father, her father has, on all of the evidence before me, chosen not to avail her of the opportunity to have that relationship.  The child’s views are an important consideration in this case, given her age and what she has already endured in her young life. I note what Mr E says about the aetiology of her views, but, nevertheless, her adamant position needs respect as do her expressed views in terms of the nature of any time, if any, that might be spent between she and her father. 

25. The nature of the relationship between the child and her father has, at least in the last 12 months or so, been very significantly curtailed compared to that which prevailed previously. But, again, that occurs apparently through the choice of the father (with all of the emotional and psychological ramifications for the child that this entails).

26. In a similar vein, that same factor might be seen to be crucially important to the extent to which the father has, at least during that period of time, failed to fulfil his responsibilities as a parent. 

27. Moreover, the erstwhile relationship that the child has had with her father has undergone a significant change and the changes in that relationship are, too, an important consideration. 

28. The parenting orders sought by the mother are contained at paragraphs 3 through 6 of the Amended Initiating Application filed 7 November 2012. In broad compass, they seek orders that the child live with the mother and that her mother have sole responsibility for her long-term care, welfare and development. That language no longer finds it place in the Act. I will make orders to the same effect more consistent with the terms of the Act.

29. In addition to the parenting orders just referred to, the mother makes an application for the costs of and incidental to these proceedings. 

30. I am told that Purdon-Sully FM reserved costs of an application or applications that had taken place before her.  In my view, any issue of costs reserved by a Federal Magistrate are a matter for the Federal Magistrates Court.  It is a pity that any outstanding orders in respect of reserved costs are not dealt with prior to matters being transferred to this Court.  In my view, I do not have the power to make an order for costs reserved to itself by another court.

31. Such application as the mother makes then is, in my view, an application confined, as her counsel concedes, to proceedings that have occurred in this Court since the transfer of the proceedings here. 

32. There is no direct evidence before me of the financial circumstances of either of the parties.  I accept, however, the contention from the bar table, that the financial circumstances of each of the parties are, on any view of the inferences available from the evidence, modest.  I have already referred to the conduct of the father in and about these proceedings and to the fact that he has not participated in six court events.

33. His self-representation has the result that those non-appearances do not cause him any cost, but each of those non-appearances cost the public significant amounts of money by the convening of a court, the arrangements necessary to be made with Mr E and the like. I consider that his non-appearances at those court events without explanation is a significant matter to be taken into account in respect of his conduct of the proceedings within the meaning of section 117(2A).

34. By reason of the orders made today and the nature of the orders made, the mother can be seen as being “wholly successful” (despite that language being, perhaps, not entirely suitable to parenting proceedings).  I have also referred to the fact that the father owes the mother already some $9000 in respect of costs. 

35. It might be thought that the apparently parlous financial circumstances of the father might make the recovery of any costs order against him somewhat academic. However, in my view, a party’s impecuniosity or, indeed, the difficulties that might be confronted in obtaining recovery of a costs order from a party, cannot be determinative of the issue or the factors to be taken into account pursuant to section 117(2A). If it were otherwise, the impecunious could litigate with impunity.

36. In my view, when all of the facts and circumstances relevant to section 117(2A) of the Act are taken into account, an order for costs ought be made in favour of the mother as against the father.

37. I order, then, that the father pay the mother’s costs of and incidental to the proceedings as and from the date the proceedings were transferred to this court in an amount as agreed between the parties in writing or, failing agreement, as assessed. 

38. The Independent Children’s Lawyer makes no application for costs. 

39. I will accept the mother’s solicitor’s undertaking to forward to the father, a copy of the orders, and the reasons when they issue, to his last known place of address.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 12 November 2012.

Associate:

Date:  19 November 2012