CLEARY & CLEARY

[2013] FCCA 594

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLEARY & CLEARY [2013] FCCA 594

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the children – family violence issues – parental responsibility – interim orders.

COSTS – Application for costs – whether costs should be awarded – whether costs should be awarded on an indemnity basis.

PRACTICE AND PROCEDURE – Observations on the undesirability of unwarranted applications for costs on an indemnity basis.

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CG, 61DA, 65DAA, 68B, 68L, 114, 117

Federal Circuit Court Rules 2001 r.15.09

Cases cited:
Colgate Palmolive Pty Ltd v Cussons Limited (1993) 46 FCR 225
Re K (1994) 17 Fam LR 537; FLC 92-461
Kohan & Kohan (1993) FLC 92-340

Applicant: MR CLEARY

Respondent: MS CLEARY

File Number: SYC 3150 0f 2013

Judgment of: Judge Scarlett

Hearing date: 18 June 2013

Date of Last Submission: 18 June 2013

Delivered at: Sydney

Delivered on: 24 June 2013

REPRESENTATION

Counsel for the Applicant: Ms Morton

Solicitors for the Applicant: Morton Family Lawyers

Counsel for the Respondent: Mr Zreika

Solicitors for the Respondent: Sterling Legal

ORDERS

UNTIL FURTHER ORDER:

1. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for [X] born [in] 2009 and [Y] born [in] 2010.

2. The children [X] and [Y] are to live with the Mother.

3. The Father is to spend time with the children:

   (a)From 9:00am to 5:00pm each alternate Saturday commencing on 22 June 2013;

   (b)From 9:00am to 5:00pm each alternate Sunday commencing on 23 June 2013;

   (c)From 9:00am to 5:00pm on Father’s Day in each year;

   (d)For a period of two hours on each of the children’s birthdays if the birthday falls on a week day and from 9:00am to 12 noon if that day should fall on a Saturday or Sunday when the children would not otherwise be spending time with the Father in accordance with these Orders;

   (e)For a period of two hours on the Father’s birthday if the birthday falls on a week day and from 9:00am to 12 noon if that day should fall on a Saturday or Sunday when the children would not otherwise be spending time with the Father in accordance with these Orders; and

   (f)At such other times as the parties shall agree.

4. Notwithstanding the provisions of Order (3) above, the children will live with the Mother:

   (a)From 9:00am to 5:00pm on Mother’s Day in each year;

   (b)From 2:00pm to 5:00pm on each of the children’s birthdays if the birthday falls on a Saturday or a Sunday when the children would otherwise be spending time with the Father in accordance with these Orders; and

   (c)From 2:00pm to 5:00pm on the Mother’s birthday if that day should fall on a Saturday or a Sunday when the children would otherwise be spending time with the Father in accordance with these Orders.

5. Orders (3) and (4) above are inconsistent with a Provisional Apprehended Domestic Violence made on 4 June 2013 returnable at [S] Local Court on 26 June 2013 and, as required by s.68P(2) of the Family Law Act 1975, the following provisions apply:

   (a)For the purpose of the Father spending time with the children [X] and [Y] he is to collect the children from the Mother’s residence at the commencement of his time with them and return the children to the Mother’s residence at the conclusion of his time with them but must not enter the residence or remain in the vicinity of the residence after he has returned the children to the Mother;

   (b)For the purpose of making arrangements to collect the children from the Mother or return the children to the Mother or in cases of emergency the Father is permitted to send a text message to the Mother’s telephone advising her of those details and for no other purpose;

   (c)The Father is to comply strictly with all other provisions of the Provisional Apprehended Domestic Violence Order;

   (d)The purpose of these Orders is to arrange for the children [X] and [Y] to spend time with the Father;

   (e)The obligations created by these Orders are for both parties to comply strictly with their terms;

   (f)The consequence of a failure to comply with these Orders is that a sanction may be imposed by the Court for contravention of these Orders;

   (g)The reasons for making Orders that are inconsistent with the Provisional Apprehended Domestic Violence Order are that:

   (i)The Provisional Apprehended Domestic Violence Order makes no provision for the children [X] and [Y] to spend time with the Father;

   (ii)The children [X] and [Y] are not named as protected persons in the Provisional Apprehended Domestic Violence Order;

   (iii)The Court is satisfied that the best interests of the children [X] and [Y] are promoted by the children having a meaningful relationship with both of the children’s parents;

   (iv)The Court has considered the requirements of s.60CG of the Family Law Act;

   (v)The Court has considered that the best interests of the children [X] and [Y] require that the children are protected from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;

   (vi)The parties may apply to vary or revoke these Orders by filing and serving an Application in a Case. 

6. As required by s.68P(3) of the Family Law Act, a copy of these Orders must be forwarded to:

   (i)The Registrar of the Local Court of New South Wales at [S] with the request that the order be placed on the Court file; and

   (ii)The Commissioner of Police in and for the State of New South Wales for the attention of the Officer in Charge of the [S] Police Station with the request that it be provided to Constable [omitted].

7. The Mother is restrained by injunction from permitting the children [X] and [Y] to come into contact with any of the following persons:

   (a)Her brother MR T;

   (b)Her brother MR K;

   (c)Her father MR E;

   (d)Her uncle MR M; or

   (e)Her cousin MR G also known as MR G.

8. The Mother is restrained by injunction from permitting any of the following persons to enter or remain in any house, home unit or other dwelling in which the children may be present:

   (a)Her brother MR T;

   (b)Her brother MR K;

   (c)Her father MR E;

   (d)Her uncle MR M; or

   (e)Her cousin MR G also known as MR G.

9. The interests of the children [X] born [in] 2009 and [Y] are to be independently represented by a lawyer as provided by section 68L of the Family Law Act and for this purpose Legal Aid NSW is requested to arrange such representation.

10. The parties’ solicitors are to forward to Legal Aid NSW for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents within fourteen (14) days.

11. The Independent Children’s Lawyer is given leave to issue up ten (10) subpoenas.

12. No order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Cleary & Cleary is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 3150 0f 2013

MR CLEARY

Applicant

And

MS CLEARY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an urgent Application by the Father for interim orders that:

   a)He should have sole parental responsibility for the parties’ two children, a little boy aged four and a little girl aged three;

   b)That provided the Mother ensures that the children are not brought into contact with:

   i)Her two brothers;

   ii)A male cousin;

   iii)Her uncle; or

   iv)Her father;

   she should spend time with the children on two consecutive days a week and at other times as agreed between the parties.

2. The Father also seeks an order that the Mother should pay his costs on an indemnity basis.

3. The Mother has filed a Response in which she seeks orders that:

   a)The parties should have equal shared parental responsibility for the children;

   b)The children should live with her;

   c)The Father should spend time with the children:

   i)On alternate weekends;

   ii)During the week on reasonable notice;

   iii)By telephone at all reasonable hours;

   iv)During school holidays, on religious occasions and on the children’s birthdays; and

   v)At other times as agreed.

4. Curiously, the Mother seeks an injunctive order against the Father under s.114 of the Family Law Act 1975 (Cth) as a final order, but not on an interim basis.

Background

1. The Father was born [in] 1978 and is a [omitted] by occupation. The Mother was born [in] 1985 and works for three days a week as an [omitted].

2. The parties were married [in] 2007 and separated under the one roof in March 2011. The Mother moved out of the matrimonial home with the children in March 2013.

3. There are two children of the marriage. Their son was born [in] 2009 and is now four years old. Their daughter was born [in] 2010 and is therefore three years old. The children both live with their mother, who now lives with her mother. The Father remains living in the former matrimonial home.

4. The Mother was subjected to sexual abuse by older male relatives when she was a child, between the ages of 5 and 17 years. She disclosed some of this abuse to the Father in 2009, before the birth of their son in 2009. She later disclosed on two occasions in 2012 that she had been the subject of abuse by two other older male relatives.

5. As a result of the abuses to which she was subjected, the Mother has suffered from psychological difficulties. She has been attending counselling by a psychologist and has been treated and prescribed medication by a psychiatrist.

6. The parties’ accounts differ, but it is not in issue that the Mother has made at least one attempt on her life by taking an overdose of prescribed medications one occasion and by threatening to jump off a cliff on another occasions. There have been interventions by the Police on three occasions, two of which have led to the Mother undergoing hospital treatment.

7. There was an incident between the parties on Tuesday 2^nd June, the circumstances of which are in dispute between the parties. There is no issue as to the fact that they have exchanged acrimonious telephone text messages.

8. The Father was arrested by the Police on the night of 3^rd June and was detained overnight at [S] Police Station. He was not charged with an offence but a Provisional Apprehended Domestic Violence order was issued, initially returnable at the Local Court at [S] on 12^th June. The proceedings were adjourned to Wednesday 26^th June and the Provisional ADVO has been continued.

9. The Orders made in the Provisional Apprehended Domestic Violence Order are:

   a)The mandatory orders:

   i)The defendant must not assault, molest, harass, or otherwise interfere with the protected person.

   ii)The defendant must not engage in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship.

   iii)The defendant must not stalk the protected person or a person with whom the protected person has a domestic relationship.   

10. There is an additional order:

    6. The defendant must not approach or contact the protected person by any means whatsoever except through the defendant’s legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975, as to counselling, conciliation, or mediation.

11. The Mother is named as the protected person under the Provisional ADVO. The children are not named as protected persons.

Consideration

1. The parties attended Court and the Father sought orders that the children should live with him until further order. The Father’s affidavit in support contained no evidence his living or working arrangements or what arrangements he proposed to put in place if, indeed, the children were to live with him until further order.

2. He deposed that his primary concern is the welfare of the children:

   I am concerned for the safety and well-being of the children whilst they are in [Ms Cleary’s][1] care and, further, that [Ms Cleary] may not protect the children from the risk of sexual abuse.[2]

   [1] [Ms Cleary] is the Mother

   [2] Affidavit of Mr Cleary 6.6.2013 at paragraph [61]

3. When the Application came before the Court, Judge Altobelli directed the parties to attend a Child Dispute Conference with a Family Consultant. The Family Consultant, in her memorandum, noted that serious concerns had been raised about the children’s safety in the care of their mother. The Family Consultant also noted the Mother’s allegations that the children had been exposed to violence by the Father towards her.

4. The Family Consultant recommended that:

   a)The Court should consider an expert report to address concerns about the Mother’s mental health; and

   b)The children’s interests should be independently represented by a lawyer.

5. The parties’ solicitors were granted access to material produced on subpoena. Of particular relevance was a copy of a statement made by the Mother to the Police on 28^th December 2012 in which she detailed:

   a)Sexual abuse by various older male relatives; and

   b)Violence by her father.

Submissions

1. The Father is concerned about the risk to the children if they remain in the Mother’s care. In particular his solicitor referred to various aspects of the Mother’s affidavit evidence that lack credibility. There is also a concern that the Mother downplays the risk to the children from possible interaction with her family members who have abused her in the past. The Father has not spent time with the children since Monday 3^rd June.

2. The Mother would willingly agree to injunctive orders to protect the children and concedes that the children should spend time with their father. Her concern is that the relationship with the Father is hostile. She does not believe that the children should be removed from her care. She lives with her mother who has told the offending family members that they are no longer welcome at the home.

3. The parties are at issue as to whether the events that led to the Father’s arrest occur in the way that they did. The Father’s solicitor concedes that text messages sent by the Father to the Mother were hostile and abusive.

The law to be applied in parenting applications

1. When a court is deciding whether to make a particular parenting order, it is required by s.60CA of the Family Law Act to regard the best interests of the children as the paramount consideration.

2. The Court determines what is in children’s best interests by considering the matters in subsections (2) and (3) of s.60CC. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. The Court is required by subsection 60CC(2A) to give greater weight to the consideration set out in paragraph (2)(b).

4. Section 61DA of the Act requires the Court making a parenting order to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. The presumption does not apply in cases of abuse or family violence (s.61DA(2)) and may be rebutted by evidence that satisfies the Court that equal shared parental responsibility would not be in the child’s best interests.

5. The presumption applies when the court is making an interim order unless the court considers that it would not be appropriate in the circumstances (s.61DA(3)).

6. Where the Court makes an order that a child’s parents are to have equal shared parental responsibility for the child, the court is required by s.65DAA(1) to consider whether an order that the child should spend equal time with each parent is:

   a)in the child’s best interests; and

   b)reasonably practicable.

7. If the Court does not make an order for the child to spend equal time with each parent, it is then required by s.65DAA(2) to consider whether spending substantial and significant time with each parent is:

   a)in the child’s best interests; and

   b)reasonably practicable.

8. All of the above matters have been considered.

Conclusions

1. The primary considerations under s.60CC(2) are both particularly relevant here. There is a benefit to the children in having a meaningful relationship with both of their parents, but this must be weighed against the need to protect them from being subjected to abuse, neglect or family violence. Greater weight must be given to the later consideration.

2. The evidence in my view is not sufficient to reach the conclusion that the children’s best interests require that they be removed from their mother’s care and placed in the care of their father. However, there is in my view a clear need to secure the children’s safety whilst in the care of their mother by making injunctive Orders under s.68B of the Act forbidding the Mother from allowing the children to be brought into contact with the four male relatives who she asserts abused her when she was a child or to be brought into contact with her father, who she asserts was a violent man.

3. The question of the Mother’s mental health needs to be explored, and it may well be that the Court will need to order an expert report from a mental health professional under Rule 15.09, as recommended by the Family Consultant.

4. The Family Consultant has also recommended that the children’s interests should be represented by a lawyer, a proposal with which neither of the parties’ solicitors disagreed. It appears to me that the Mother’s allegations of violent behaviour towards her by the Father and the evidence of the Mother’s mental health difficulties arising from her childhood abuse, including a suicidal ideation, are matters of the type referred to in the well-known decision of Re K[3] that would warrant the appointment of an Independent Children’s Lawyer under s.68L of the Family Law Act.

   [3] (1994) 17 Fam LR 537; FLC 92-461

5. The Father has not established that it is necessary for the children’s safety that they should be removed from the Mother’s care and placed with him on an interim basis. However, it is concerning that the children have not spent any time with him since 3^rd June. There seems to me no reason why their time with him should not be reintroduced as soon as possible. As I told the parties at the hearing, the children should spend from 9:00am to 5:00pm on the Saturday and Sunday of the weekend 22^nd and 23^rd June. Parenting arrangements can be reviewed when the matter is back before the Court on Monday 24^th June.

6. Whilst the children are not named as protected persons in the Provisional Apprehended Domestic Violence Order, any parenting order providing for communication between the parties would be, at this stage, inconsistent with the Provisional ADVO. I am satisfied that the orders should be made, but this will involve a consideration of the risk of family violence under s.60CG of the Act, which I have done, and, subsequently, making Orders inconsistent with the existing Provisional Apprehended Domestic Violence Order under s.68P of the Act, which I intend to do.

7. The application for an Apprehended Domestic Violence Order will be back before the [S] Local Court on Wednesday 26^th June. It is important that the Local Court is made aware of the Orders made by this Court, and s.68P requires that this should be done. It should be made quite clear that it is the Local Court that will decide whether or not a case has been made out for an Apprehended Domestic Violence Order to be made, not this Court.

8. What should be done by the parties’ lawyers, however, is to provide this Court with a copy of any Apprehended Domestic Violence Order made by the Local Court as soon as reasonably practicable after the Order has been made, in order to comply with s.60CF of the Family Law Act.

1. I am satisfied that it is in the best interests of the children that injunctive Orders should be made under s.68B restraining the Mother from allowing the children to be brought into contact from the people previously mentioned, in order to protect them from the risk of harm. I am also satisfied that an interim parenting order should be made in favour of the Father, providing that the children should resume spending time with him in order to give them the benefit of having, and continuing, a meaningful relationship with their father.

2. The Application will again be mentioned before the Court in approximately one month’s time, when the Court will have the benefit of the assistance of the Independent Children’s Lawyer.

Costs

1. The Father’s Application for Interim orders seeks an order:

   That the Wife pay the Husband’s costs on an indemnity basis.

2. No submission has been made, nor any evidence been led, in support of any application for costs, whether on an indemnity basis or on the usual party and party basis. In order to make an order for costs, the Court must be “of opinion that there are circumstances that justify it in doing so” as provided by s.117(2) of the Act.

3. In considering what order (if any) should be made, the Court is required to have regard to the maters set out in paragraphs (a) to (g) of s.117(2A). No matters have been brought to the Court’s attention.

4. As to the application for costs to be awarded on an indemnity basis, there is no material whatsoever before the Court that would at all justify indemnity costs, even if I were satisfied that a costs order should be made at all. Costs are seldom awarded on an indemnity basis. It has been held that there should be some special or unusual feature in the case that would justify a departure from the usual practice that costs should be assessed on a party and party basis (Colgate Palmolive Pty Ltd v Cussons Limited[4]; see also Kohan & Kohan[5]).

   [4] (1993) 46 FCR 225

   [5] (1993) FLC 92-340

5. There is little, if any, utility in making a routine application for indemnity costs in cases, like this one, where there is no real chance that the Court will make such an order. It is a practice that will not be encouraged. Practitioners should leave applications for costs on an indemnity for those rare occasions when the Court might possibly contemplate making such an order.

6. There will be no order for costs.           

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  21 June 2013