Chrystie & Dellas
[2024] FedCFamC1F 340
•13 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chrystie & Dellas [2024] FedCFamC1F 340
File number(s): CAC 1320 of 2014 Judgment of: ALTOBELLI J Date of judgment: 13 May 2024 Catchwords: FAMILY LAW – PARENTING – Where the respondent mother seeks that the entirety of the proceedings be dismissed – Where there will be no final parenting orders in place for the subject children if the proceedings are dismissed – The father has disengaged in the proceedings – Provisions of s 61C of the Family Law Act 1975 (Cth) apply – Proceedings dismissed – Costs awarded in favour of the mother. Legislation: Family Law Act 1975 (Cth) ss 61C, 117(1), 117(2A) Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 13 May 2024 Place: Sydney The Applicant: Litigant in person (did not participate) Solicitor for the Respondent: Newnhams Solicitors Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
CAC 1320 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CHRYSTIE
Applicant
AND: MS DELLAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
13 MAY 2024
THE COURT ORDERS THAT:
1.Pursuant to r 10.27(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (as amended by the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024), the entirety of these proceedings before the Court is dismissed.
2.Within 28 days of these orders, the Applicant father is to pay the costs of the Respondent mother fixed in the sum of $5,000.
3.The Independent Children’s Lawyer’s application for costs is dismissed.
4.Within 72 hours of these orders, the Independent Children’s Lawyer is directed to notify the Applicant father of the orders that have been made today in his absence.
THE COURT NOTES THAT:
A.There was no appearance by or on behalf of the Applicant father today.
B.Pursuant to Rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Court may vary or set aside a judgment or order made in the absence of a party.
C.In the event that the Applicant seeks to make an application pursuant to Notation B hereof, the Applicant must make such application within 28 days of the making of these orders and ensure that they contemporaneously file an affidavit in support explaining their absence and lack of participation in these proceedings.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Chrystie & Dellas has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This matter relates to three children: X, who is 13; W, who is 16, and Y who is 12 (“the children”). The children live with their mother (“the mother”). Indeed, they have lived with the mother for many, many years. There are orders in place for the children to spend time with the father (“the father”), but he has not exercised the benefits that accrue to him pursuant to those orders.
APPLICATION TO DISMISS THE PROCEEDINGS
The matter is a very, very long-running matter, first coming before the Court in 2014, but the current proceedings historically relate back to 2017. On the application of the mother, and supported by the Independent Children's Lawyer, I dismissed the entirety of the proceedings on the basis of the default, indeed, the persistent default, of the father.
The reality, when one views the chronology over all of the history of this matter, is that his participation has been selective, inconsistent, and more recently, non-existent. He failed to comply with the orders made by Rees J on 31 August 2023. He failed to comply with the orders that I made on 17 April 2024. I observe that, technically, the mother also failed to comply with the orders of Rees J, but in her affidavit of 3 April, she satisfactorily explains to the Court the reasons why.
The result of dismissing the entirety of the proceedings is that there are no orders in relation to the children, and it seems to be accepted the provisions of s 61C of the Family Law Act 1975 (Cth) (“the Act”) apply, such that each parent has parental responsibility for these children.
Both the mother and the Independent Children’s Lawyer accept that this is a pragmatic response which brings to an end long-running proceedings, which have no doubt, I accept, caused the mother enormous emotional burden as well as cost, and has also exposed the children directly or indirectly to what seems to be the intense conflict between their parents. This is all brought to an end as a result of the dismissal of the proceedings.
I am satisfied that the dismissal of the proceedings is, in any event, in the best interests of the children. I incorporate into these ex tempore reasons for judgment a brief chronology that I caused to be prepared.
Date
Event
Source
12 April 2017
F initiates proceedings
IA 12-04-17
1 May 2017
Interim parenting consent orders – children LW-M and STW-F each Wednesday after school to 7pm, alternate weekends from after school on Friday to 4pm on Sunday and half holidays; Airport Watchlist order
Judge Hughes
01-05-17
5 June 2017
Transferred to the FCA; ICL appointed; interim orders made (not attached to orders)
Judge Henderson
05-06-17
31 August 2017
Interim parenting order – ESPR; LW-M; STW-F for one weekend per month, split between Sydney and Perth, supervised by a family member.
Registrar
31-08-17
24 August 2018
Interim parenting order – ESPR; LW-M; STW-F for one weekend per month, split between Sydney and Perth, supervised by a family member; Airport Watchlist order.
Registrar
24-08-18
17 Dec 2019
Family Report prepared by Dr C
14 January 2019
Addendum to Family Report prepared by Dr C
19 February 2019
Addendum released to parties.
Registrar
19-02-19
21 February 2019
Interim parenting consent order – children STW-F one weekend per month in Sydney, supervised by a family member.
Registrar
21-02-19
27 June 2019
Interim parenting consent order – ESPR; LW-M, STW-F on various weekends, then from 2020 the third weekend of every month from 5pm on Friday to 5pm on Sunday (with overnight time supervised); Airport Watchlist order.
Registrar
27-06-19
3 June 2020
Consent order – children to attend upon Mr D for family therapy (for psycho-education and improving their relationship with F); matter placed in the pool.
Alstergren CJ
03-06-20
27 January 2021
All time children spend with F to be in NSW.
Registrar
27-01-21
6 April 2021
Dr E appointed to prepare single expert report; children to attend family therapy.
Registrar
06-04-21
9 September 2021
Single Expert Report of Dr E dated 29 August 2021 released to the parties.
Registrar
09-09-21
25 October 2021
Interim parenting order – ESPR; LW-M; STW-F in Sydney on the third weekend of each month from 9am Saturday to 5pm Sunday (on six occasions), then on the third weekend of each month from after school on Friday to 5pm Sunday, and five days during holidays.
SJR
25-10-21
24 March 2022
Transferred to Division 1
Alstergren CJ
24-03-22
24 March 2022
Dr E to prepare a report re therapeutic interventions; s 102NA order
Henderson J
24-03-22
16 November 2022
Matter referred to CMJ for allocation to a judge.
Notation that the parties intend on calling 20 witnesses and need 3 weeks hearing time.
Henderson J
16-11-22
29 July 2023
Updated report of Dr E released to parties.
Henderson J
29-07-23
16 August 2023
Matter transferred to Harper J’s docket
Harper J
16-08-23
31 August 2023
Parties directed to f/s affidavit material by 20 March 2024, so that they can be allocated hearing dates.
Notations – F currently self-repped; F seeks sole PR and for the children to live with him in Perth; he intends to call 26 witnesses to prove alienation; M seeks sole PR and no contact (except in accordance with the children’s wishes); she intends to call 8-9 witnesses to prove FV.
Rees J
31-08-23
The chronology shows that since at least 2017, the children have been living with the mother, and there have been various orders for them to spend time with the father which have not necessarily been complied with.
Since 2017, there have been multiple interim orders and multiple family and expert reports, indeed two by Dr C and two by Dr E. The consistent theme of that expert evidence is that it is in best interests of the children to live with the mother, contrary to the father's proposal that they live with him in Perth, Western Australia.
The reports, especially Dr E’s reports, emphasise the importance of the children spending time with the father. The overall impression that is created by looking at the history of this matter, and indeed the expert reports, especially those of Dr E, show, regrettably, the father's lack of interest or commitment to a sustained relationship with the children. Of concern is that the father has not done things that easily could have taken a step towards improving his relationship with the children. There is no evidence that he complied, for example, with the recommendations made by Dr E in his first report of 29 August 2021 or his second report of 19 July 2023.
The evidence suggests that both parents, but the father especially, appear to have had multiple difficult and challenging experiences in their lives. That perhaps explains the nature of the father's inconsistent participation in the proceedings. It does not detract, however, from my conclusion that these orders are in the best interests of the children, even in the absence of there being no orders for them to spend time with the father.
Sometimes there is only so much that the Court, indeed the family law system, can do to assist litigants, and this might be one of those examples. Overall, I am satisfied that the order dismissing the proceedings in its entirety is actually the best outcome for the children in the unfortunate circumstances of this case. All of the material suggests that the mother is more than able and capable of caring for them and making the most appropriate decisions about them, including whether, and if so, on what terms, they should spend time with or communicate with the father.
COSTS APPLICATION
I am asked to make an order for costs in the proceedings, being the costs of the mother. I am informed by her solicitor, Mr Knox, that the mother's actual costs in the proceedings were in excess of $150,000. However, she only seeks costs of $5,000. The basis for that is s 117(2A)(c) and s 117(2A)(d) of the Act, namely the conduct of the parties and whether the proceedings were necessitated by the failure of the parties to the proceedings to comply with previous orders of the Court.
Costs are sought notionally on an indemnity basis, but I acknowledge, in circumstances where the mother is seeking but a tiny fraction of the costs that she seeks, it is somewhat artificial whether the costs are party/party, indemnity, or are simply assessed by the Court. The solicitor for the mother acknowledges quite openly that the prospects of recovery of any costs order from the father are minimal. That being said, and indeed acknowledged, the fact of impecuniosity, if that is the reason for non-payment, is not a bar to the making of a costs order if one is otherwise appropriate.
The opening proposition of s 117(1) is that each party should bear his or her own costs. Subsection (2) explains, however, that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, by reference to subsection (2A), make an order for costs. As I stated earlier in my reasons, the father's participation in these proceedings has been sporadic and inconsistent, not just in the sense of participating in the litigation in any meaningful sense, and in this regard, I note that his attendance at Court events has been pretty good except for recent history. By participation, I mean, meaningfully engaging in the Court process such that, for example, he would take heed and seek to implement some of what would appear to be the very sage advice that he was given both by Dr C and Dr E in terms of seeking to restore his relationship with the children. There is no evidence that he has done that. So, his conduct in this matter is less than what one would expect of a father seeking to rebuild his relationship with the children.
The father has put the mother to enormous cost and inconvenience and stress as a result of these very long-running proceedings, which, on her application, have been dismissed. The father has failed specifically to comply with the orders of the Court, namely those of Rees J that I referred to above and also those of mine on 17 April.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 13 May 2024. Associate:
Dated: 21 May 2024
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