Clover & Clover
[2021] FedCFamC1F 109
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Clover & Clover [2021] FedCFamC1F 109
File number(s): MLC 9506 of 2016 Judgment of: MACMILLAN J Date of judgment: 8 October 2021 Catchwords: FAMILY LAW – CHILDREN – where the mother filed an Application in a Case seeking to proceed with her application for final parenting orders on an undefended basis – where the father failed to comply with trial orders – where the father last filed Court documents in May 2019 – where the father was not represented and did not appear – where the child has not spent time with the father since August 2019 – where orders made for sole parental responsibility and for any communication and time with the father to be as agreed and in accordance with the child’s wishes. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.33(2), 12.17
Cases cited: Donnell & Dovey (2010) FLC 93-42
Mulvany & Lane (2009) FLC 93-404
U v U (2002) 211 CLR 238
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 17 September 2021 Place: Melbourne The Applicant: No Appearance Solicitor for the Respondent: Docherty Legal Solicitor for the Independent Children's Lawyer: Joliman Lawyers ORDERS
MLC 9506 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CLOVER
Applicant
AND: MR CLOVER
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MACMILLAN J
DATE OF ORDER:
17 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to paragraph 21 of the orders made 25 June 2021 the Mother have leave to proceed with her application for Final Orders as detailed in the Amended Response filed 19 February 2020 on an undefended basis.
2.The Father’s Initiating Application filed 27 May 2019 be dismissed.
3.The orders of the Federal Circuit Court of Australia made 15 August 2017 be discharged.
4.The Mother have sole parental responsibility for the child X born … 2009.
5.The child live with the Mother.
6.The child spend time and communication with the Father as agreed and in accordance with her wishes.
7.The Father pay the Mother’s costs of these proceedings fixed in the sum of $22,324.00 and the costs be payable to Victoria Legal Aid.
IT IS FURTHER ORDERED THAT
8.The appointment of the Independent Children’s Lawyer be discharged.
9.The trial date commencing 8 December 2021 be vacated.
10.All extant proceedings be otherwise dismissed and removed from the list of cases awaiting hearing.
11.I otherwise reserve my reasons.
IT IS DIRECTED THAT
12.All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Clover & Clover has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MACMILLAN J
Although this matter which relates to the parenting arrangements for the child X who is 11 years of age (“the child”) has a somewhat complex history, the child not having spent any face to face time with the father, apart from during the interview with Ms B (the “family report writer”), and not having participated in the proceedings, the outcome is now clear. This is despite the family report writer’s recommendation that the child live with the father. At the conclusion of the hearing I made the orders sought by the mother and reserved my reasons. These are those reasons.
BACKGROUND
The father was born in 1969 and is 52. The mother was born in 1973 and is 48. The parties commenced cohabitation in 2008, were married in 2009, separated in March 2016 and were divorced in 2017. X who has been diagnosed with high functioning Autism is the only child of their relationship. The child is reported by the mother to be otherwise in good health.
The parenting proceedings were commenced in the Federal Circuit Court of Australia (“FCC”) on 6 June 2017 when the mother filed an Initiating Application seeking inter alia orders for equal shared parental responsibility, that the child live with her and spend time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday during the school term and for half of each school term holidays. On 15 August 2017 Judge Bender made final parenting orders by consent in the terms of the mother’s Application.
The parenting proceedings currently before this Court commenced in the FCC on 27 May 2019 when the father filed an Initiating Application to reverse the arrangements for the child seeking inter alia orders that the child live with him and spend each alternate weekend with the mother. The father also sought an urgent interim hearing on the basis that the child had not been attending school. On 13 June 2019, Judge Boymal made interim orders providing inter alia for the child to spend time with the father each alternate weekend from 4.00 pm on Friday until 5.00 pm on Sunday.
The matter was transferred to the Family Court of Australia (“Family Court”) on 3 March 2020 and was listed for a directions hearing on 1 May 2020. The father did not appear and was not represented at the directions hearing. The matter was then listed for a trial management hearing before me on 25 June 2021. The father was not represented and did not appear at the hearing. On 25 June 2021, I made orders for a trial inter alia as follows:
(1)All extant applications for final orders be adjourned for hearing before me on 8 December 2021;
(2)The applicant file and serve an amended application and any affidavits of evidence in chief by 20 August 2021;
(3)The respondent file and serve an amended response and any affidavits of evidence in chief by 10 September 2021;
(4)The applicant file and serve any affidavit in reply;
(5)For the appointment of an Independent Children’s Lawyer (“ICL”);
(6)The parties and the child attend upon a family consultant for the purposes of the preparation of a family report not to be commenced until after 20 September 2021 but to be completed and released by 8 November 2021; and
(7)Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.
On 1 September 2021, the father having failed to comply with the orders made on 25 June 2021, the mother filed an Application in a Case seeking that the matter proceed on an undefended basis. She further sought orders dismissing the father’s Initiating Application filed 27 May 2019, that final orders made 15 August 2017 be discharged, that she have sole parental responsibility of the child, that the child live with her, that the child’s time and communication with the father to be reserved and that the father pay her costs.
The mother deposes that the child has not spent any time with the father pursuant to the orders made 26 August 2019 and that he has not contacted her with a view to spending time or communicating with the child.
LEGAL PRINCIPLES
Rule 1.33(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provides as follows:
(2) If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:
(a) dismiss all or part of the proceeding;
(b) set aside a step taken or an order made;
(c) determine the proceeding as if it were undefended;
(d) order costs;
(e) prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f) make any other order the court considers necessary, having regard to the overarching purpose of these Rules (see rule 1.04).
I am satisfied that the mother’s Application in a Case filed 1 September 2021 seeking to proceed undefended and setting out the final parenting orders she seeks was personally served upon the father on 3 September 2021. The father was not represented and did not appear at the hearing before me on 17 September 2021. I am satisfied that it was appropriate in these circumstances for the matter to proceed undefended.
In ascertaining a child’s best interests, the Court must consider the objects, principles and the matters set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The paramount consideration is the best interests of the child the subject of the proceedings (s 60CA of the Act).
The objects of this part of the Act and the principles underlying those objects are found in ss 60B(1) and (2) of the Act being to ensure that the best interests of the child the subject of the proceedings are met by:
(a)Ensuring that child has the benefit of both of its parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)Protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)Ensuring that the child receives adequate and proper parenting to help that child achieve its full potential; and
(d)Ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of the child.
The Court in determining what orders will be in a child’s best interests must consider the matters in ss 60CC(2) and (3) of the Act. Pursuant to s 60CC(2A) of the Act when considering the matters in s 60CC(2), the Court must place greater weight on the need to protect a child or children from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence (s 60CC(2A)).
In Donnell & Dovey (2010) FLC 93-428 at [103], the Full Court of the Family Court of Australia (“Full Court”) described the s 60CC considerations as:
…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed as follows:
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Original emphasis)
The facts of each case differ and in these circumstances as referred to by the Full Court, some of these s 60CC considerations will be of more relevance than others having regard to the particular circumstances of the case. This is particularly so in a case such as this one which is undefended.
DISCUSSION
Critically in this case the mother is the only parent seeking to care for the child and she has been providing that care without any input or involvement by the father since December 2018. In her Affidavit filed 8 September 2021 the mother set out in some detail the arrangements for the child in her care. I am satisfied that those arrangements are in the child’s best interests.
The mother also set out in some detail the history of the child’s face to face time with the father and the eventual breakdown of those arrangements. Although the mother attended at the scheduled changeover with the child facilitated by C Contact Service on 13 January 2019, the child refused to go with the father and C Contact Service advised that they would be withdrawing their services having concluded that it was unproductive and not in the child’s best interests. On 8 February 2020 there was a further unsuccessful attempt to facilitate changeover for the purposes of the child spending time with the father when the child refused to get out of the mother’s car. The mother continued to attend at the school for changeover on Friday afternoons until 13 June 2019 when the court ordered that changeovers take place at McDonalds. The changeovers continued at McDonalds, albeit they were not successful, until the hearing on 26 August 2019 when the child’s time with the father was suspended pending the release of the family report to allow the child some respite. It is that report which recommended a change of residence.
The mother deposes in some detail to the dispute between she and the father in relation to the child’s schooling in particular, which primary school the child should attend, the father ultimately signing the enrolment for the school proposed by the mother which was close to her home although only after she had filed an application to address the issue. The mother also deposes to the father having been recalcitrant in relation to the arrangements for the child’s enrolment in secondary school in 2022.
I accept the mother’s unchallenged evidence. Notwithstanding the recommendations of the family report writer there is no basis for not making the orders the mother proposes. Clearly someone needs to be able to be responsible for making major decisions with respect to the child’s welfare and I am satisfied that in circumstances where the parties have been unable to make those decisions jointly and the father has now abrogated his responsibility for doing so that it would not be in this child’s best interests for the father and mother to have equal shared parental responsibility. In these circumstances it is not necessary to consider whether it would be in the child’s best interests and reasonably practical for her to spend equal to substantial time with the father. I am however also satisfied that it is in the child’s best interests to live with the mother and that in circumstances where the father has not participated in the proceedings, appropriate to make the orders sought by the mother in her application save that I ordered, as proposed by the Independent Children’s Lawyer, and agreed to by the mother, that any face to face time and communication with the father be as agreed between the parties and in accordance with the child’s wishes.
COSTS
The mother also sought an order for costs fixed in the sum of $22,324 payable by the father directly to Victoria Legal Aid.
The general rule is that parties to proceedings pursuant to the Act bear their own costs pursuant to s 117(1) of the Act. However the Court may make an order for costs if it is of the opinion that there are circumstances that justify it doing so (s 117(2) of the Act). Section 117(2A) of the Act sets out the matters the Court must have regard to, subject to the circumstances of the particular case, in considering what if any order should be made as follows:
(a)The financial circumstances of each of the parties to the proceedings;
(b)Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspections, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)Such other matters as the court considers relevant.
Rule 12.17 of the Rules sets out the various methods by which any costs that are ordered may be calculated. The Court may order costs of a specific amount, as assessed on a particular basis such as party and party or indemnity costs, in accordance with the method specified in the order or for part of a proceeding or part of an amount assessed in accordance with Schedule 3 of the Rules. The general rule is that when the Court makes an order for costs those costs are calculated on a party and party basis.
Financial Circumstances
The mother has casual employment and is otherwise engaged in caring for the child. She receives a carers allowance, Family Tax benefits and a parenting payment. Although the mother is in receipt of legal aid, as explained by counsel for the mother Victoria Legal Aid have lodged a caveat over the mother’s home and will seek to recover the amount that has been applied to her costs of $22,324 upon any sale of her home.
Counsel for the mother submitted that although the father may currently be studying he is a qualified electrician and owns his own home.
The Conduct of the Parties to the Proceedings And Whether the Parties Failed to Comply with Previous Orders
In summary, despite the Application for Final Orders before the Court having been initiated by the father, he has not appeared or being represented at the last three hearings including the hearing before me, and has failed to comply with the trial orders to file material. In contrast the mother has complied with the trial orders having filed her material in accordance with those orders and has attended court as required incurring significant legal costs in doing so.
Wholly Unsuccessful
The father’s Application for Final Orders having been abandoned cannot be described as having been wholly unsuccessful. However, the fact that having put the mother to the cost of responding to his application he then abandoned that application, is in my view a relevant consideration.
CONCLUSION
I am satisfied that there are in this case circumstances which justify an order for costs and at the conclusion of the hearing made orders in the terms sought by the mother.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan. Associate:
Dated: 8 October 2021
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