Conner & Elwyn
[2022] FedCFamC1F 130
•21 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Conner & Elwyn [2022] FedCFamC1F 130
File number(s): CSC 129 of 2021 Judgment of: BAUMANN J Date of judgment: 21 March 2022 Catchwords: FAMILY LAW – PARENTING – Where final parenting Orders were made in 2015 – Consideration of Rice & Asplund principles – Where the Court finds there insufficient evidence of any change in circumstances – Application dismissed
FAMILY LAW – PRACTICE AND PROCEDURE – Where the father has filed and discontinued multiple applications over several years – Where, pursuant to s 102QB, the mother seeks the father be declared a vexatious litigation – Orders made prohibiting the father from further instituting proceedings without first having been granted leave to commence that proceeding pursuant to s 102QE
Legislation: Family Law Act 1975 (Cth) ss 102Q, 102QB, 102QE Cases cited: Garrety & Steyn (No. 2) [2021] FamCA 277
Rice & Asplund (1979) FLC 90-725
Conner &Elwyn [2015] FCCA 3642
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 28 October 2021 Place: Heard in H City, delivered in Brisbane Counsel for the Applicant: Litigant in person Counsel for the Respondent: Mr Raeburn ORDERS
CSC 129 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CONNER
Applicant
AND: MS ELWYN
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
21 MARCH 2022
THE COURT ORDERS:
1.That the father’s parenting Application filed 12 February 2021 is dismissed.
2.That the father, Mr Conner, is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) against the mother, Ms Elwyn, or in relation to the child, X born in 2010, without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.
3.That if the mother maintains her application for costs, then the following timetable for filing written submissions applies:
(a)The mother shall file and serve by 8 April 2022, written submissions dealing with both liability and quantum of costs sought;
(b)The father shall file and serve by 29 April 2022 any written submissions in response; and
(c)Unless otherwise ordered, the issue of costs shall be determined in chambers on the papers.
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 the pseudonym Conner &Elwyn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
After lengthy litigation between Mr Conner (“the father”) and Ms Elwyn (“the mother”) from April 2013 to May 2015, Judge Willis of the Federal Circuit Court of Australia (as it was then called) made final parenting Orders in respect of the parties’ child X (born in 2010).
The said Orders made 18 May 2015 were slightly varied on 10 November 2015 in the context of a Contravention Application filed by the father.
Subsequently, on 18 May 2016 the father filed a fresh parenting application seeking a variation to the May 2015 Orders, essentially to increase the frequency of time the child would spend with the father as well as to extend time from Saturday and Sunday monthly from 9.00am to 2.00pm each day, to “[t]he first and second weekend of the month from 9:00am Saturday to 3:00pm Sunday, [s]ubject to [the] Applicant’s roster…” and “[e]ach Wednesday from after school until the start of school Thursday.” In addition, the father sought an order that the child spend two weeks during the school holidays each year with the father. The father discontinued his Application three months later (but after the mother had filed a Response seeking in effect the orders in existence remain in force) and when the proceedings came before Judge Willis on 14 September 2016, her Honour noted that because of the extensive earlier lengthy litigation, any future application by the father “will need to meet the legal threshold in relation to Rice & Asplund”. As a result, the father could hardly be taken by surprise by the mother’s Response to his current Application.
The next Application by the father was filed on 4 April 2019, with the father seeking the child spend time with him, inter alia, on the first weekend of each month from 9.00am Saturday to 5.00pm Sunday and every second Tuesday from after school to 7.00pm. The mother responded seeking that the father’s Application be dismissed; that the Orders of 18 May 2015 remain in force and that the father be declared a vexatious litigant.
Despite the appointment of an Independent Children’s Lawyer and the procuring of both a family report and psychiatric report, after the proceedings were transferred to the Family Court of Australia (as it was then called), again the father discontinued proceedings on 9 June 2000.
As the mother maintained her Response (and further amended her Response – in effect a cross-application – on 20 July 2020), the mother’s Response was listed for final hearing before Tree J commencing 4 November 2020. The father failed to engage in the proceedings and did not file any affidavits in compliance with the trial directions. However, when the matter came before his Honour, no orders other than for the mother’s amended Response filed 20 July 2020 to be dismissed were made.
The effect of these various Applications meant that the Orders of 18 May 2015 (varied by the Orders of 10 November 2015) and 14 September 2016 (Appendixes One, Two and Three respectively to these Reasons) remain in force. No overnight time or extended holiday time is prescribed and there are strict conditions upon the father being required to give the mother written notice if he intends to spend weekend time with the child.
THE CURRENT APPLICATIONS
On 12 February 2021, the father filed a fresh Application seeking the following final orders:
1.X, to spend 10 days of the June/July School Holidays commencing 2021 and thereafter until she reaches 15 years of age. Father will advise of the dates 4 weeks in advance due to Father’s Roster. Then X to decide whether she wishes to continue the visits, when she reaches 15 years of age.
2.X, to spend 10 days of the June/July School Holidays with the Father. X be allowed to travel to B City with Father as this is his current residence.
3.Father to have 2 weeks with X for Christmas School Holidays 2021, including Christmas Day.
4.Father to be granted a full wee-end with X being pick up from 6.00pm on Friday to 5.00pm on Sundays. Mutual agreement for pickup location and drop off location. The weekend to be granted every two months due to Father having to relocate for Employment to B City. Father will travel to H City for visit.
5.Father to be listed with X's School as a NOK and to be advised of any Medical Emergencies involving X. Father to receive copies of X's School reports and any Achievements she is involved in.
6.Mother to notify Father prior to any pending travel outside of QLD including overseas travel (one months notice, unless Emergency Travel). Full itinerary to be provided to Father and arrangements be made for X to make contact with Father for travel over 2 weeks.
7.Father be granted permission to travel interstate and overseas with Child for the purpose of a Holiday. Father seeks to be given permission for 2 weeks a year for the purpose of Holidays and travel, this will be conducted inclusive of Father’s weekend where possible. Four weeks notice will be given of any travel and will occur during School breaks.
8.Father to be advised forthwith of any Medical incidents, allergies and serious illness involving X.
9.Court not appoint Mr C as the ICL if Court deems an ICL needs to be appointed.
10.Request the 2 week Father notification of being available for visits be removed and replaced with 2 weeks notice required if unavailable and another weekend be negotiated. Mother not be able to cancel visit.
11.Matter to remain in H City Family Law Court and to be heard by Justice TREE, as he is familiar with this matter. This will prevent further delays in the matter being decided.
12.No decision to be made concerning a Surname Change for X until she reaches 15 years. To be made in consultation with the Father.
The mother filed an initial Response on 22 March 2021 seeking the following final orders:
1.The Initiating Application filed on 12 February 2021 be dismissed.
2.Final Orders 18 May 2015 and 10 November 2015 to remain current.
3.That the father, Mr Conner, be declared a vexatious litigate and be restrained from filing any further applications to the Federal Circuit Court of Australia and/or Family Law Court naming the mother as respondent without leave of this court.
4.That the father pay the mother’s costs of and incidental to this matter as agreed and failing agreement as taxed.
The amended Response filed 5 August 2021 only amended the section of the Family Law Act 1975 (Cth) (“the Act”) to be applied.
The matter proceeded to oral submissions before me in H City (with the father appearing by telephone) on 28 October 2021, when I reserved my decision. I think it is important to clearly identify the material each party relied upon for that hearing, being:
Applicant father
(a)Although the father did not file as directed a case outline, I read in the father’s application the following document:
(i)Initiating Application filed 18 February 2021;
(ii)The father’s affidavit filed 12 February 2021 and 20 October 2021;
(iii)Letter from the father’s General Practitioner Dr F (G Medical Centre) marked Exhibit 1 dated 27 October 2021 which said:
I have been asked by Mr Conner to inform the court of his long standing history of anxiety. I understand that he has been accused of being vexatious related to a history of having requests several discontinues of proceedings in the context of extreme anxiety associated with the proceedings themselves. I believe the court has excellent documentation from a court ordered psychiatrist that Mr. Conner suffers from vulnerable personality traits and the assessment does not include any indication of personality disorder that would lead to manipulative behaviours that are being alleged.
I hope this court will review again the submission of its own appointed psychiatrist before further penalising Mr Conner for his well documented mental health challenges.
Respondent mother
(a)Case outline (containing submissions) filed 30 September 2021;
(b)Amended Response filed 5 August 2021; and
(c)The mother’s affidavit filed 5 August 2021.
The submissions heard caused me to also read:
(a)the Reasons for Judgment by Judge Willis of 18 May 2015;
(b)because of the recent medical opinion relied upon by the father, the psychiatric assessment of Dr D filed 6 February 2020; and
(c)the Child Inclusive Conference Memorandum dated 22 July 2021.
The three distinct issues I am required to determine are the mother’s applications that:
(a)The father’s current parenting application to be dismissed;
(b)That the father be declared a vexatious litigant and be restrained form filing any further parenting application without prior leave of the Court; and
(c)The father pay the mother’s costs of these proceedings.
PRINCIPLES ARISING FROM RICE & ASPLUND (1979) FLC 90-725
I incorporate in these Reasons, the statement by Austin J recently in the case of Garrety & Steyn (No. 2) [2021] FamCA 277, at paragraphs 10 to 12 which succinctly sets out the principles to be applied when considering whether there has been a material and substantial change of circumstances sufficient to warrant revisiting orders made on a final basis:
10I recite and apply the following principles as summarised in Walden & Cooper [2020] FamCA 104:
9.The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
10.The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
11In this instance, the mother moved to dismiss the father’s application by way of preliminary hearing based on evidence which is, as yet, untested. In doing so, the mother accepted she must accept the father’s evidence of changed circumstances at its highest (SPS & PLS (2008) FLC 93-363 at [81]; Searson & Searson (2017) FLC 93-788 at [11]).
12If the father’s evidence demonstrates a material change in circumstances, I must then consider whether the asserted need for variation of the existing orders outweighs the potential detriment to the children which the fresh litigation could cause (Marsden v Winch (2009) 42 Fam LR 1 at [50]).
Arising from these principles to be applied, I make these findings:
(a)The orders sought to be varied made on 18 May 2015 were made in the absence of the father at a time when X was four years of age, and in circumstances where the father had discontinued the proceedings after he informed the Court he did so “so as not to have any further impact on X and for me to have some counselling on ways to deal with not being a part of her life…” (see Conner &Elwyn [2015] FCCA 3642 at [7]).
(b)Judge Willis further reflected on the evidence at that time when she said at [43] that:
Certainly, there could be no contemplation of any longer time between X and the father until such time as the father fully cooperates with a full psychiatric assessment, with being subjected to the rigours of cross-examination, and until a judicial officer determines that it is, in fact, in X’s best interests to have anything other than the orders I intend to make, which is limited time once a month.
It is noted the father took no steps to seek to set aside the Order made in his absence.
(c)Although, as the history reveals, the father did commence subsequent parenting proceedings, his action to continually discontinue those earlier proceedings has meant that the serious concerns about his mental health have not been tested “by the rigours of cross-examination”. However he did submit to an independent psychiatric assessment by Dr D on 21 November 2019, resulting in a report that day filed by the Independent Children’s Lawyer at the time. Dr D, inter alia, opined that:
(i)she found no serious psychiatric condition in the father but he has a significant and chronic psychiatric history with mainly anxiety and depression symptoms;
(ii)the discontinuance of proceedings by the father and not attending Court was likely because of the father’s history of stress;
(iii)Mr Conner is a “stress prone individual” who is “more vulnerable and fragile than the average person, however there is no evidence from the history that he has any serious mental health condition. He has vulnerabilities of personality, not mental illness. In adversarial or stressful situations, such as Family Court processes, he is less likely to cope well. Unfortunately, in a vicious cycle, his poor coping has further disadvantaged him as he has not appeared in court or discontinued actions, with outcomes that have further stressed him.”
(iv)noting the father was seeking more time, Dr D said “I can see no reason from a psychiatric perspective why this cannot or should not occur. I do not find any evidence of risk.”
(d)This evidence of Dr D is “untested” because six months after the report was published (and noting some support for the father’s position at the time was offered by Dr D), the father chose on 9 June 2020 to discontinue his Application. No real explanation is offered by the father for doing so – save for his continued challenges arising from stress and anxiety;
(e)The father did not have the benefit of legal representation when he prepared his affidavit filed 12 February 2021, in support of his current Application to vary the existing orders, however it asserts that:
(i)he has not been treated fairly by the Court system or the Independent Children’s Lawyer at the time;
(ii)the Court has ignored the mother’s parental alienation “which is the basis of my case”;
(iii)the mother has manipulated the child support system; and
(iv)the mother has breached Court Orders by “manipulating Covid-19 restrictions”.
(f)When the said affidavit is viewed holistically, the only issues the father identifies as being a material or substantial change in circumstances, seems to be that:
(i)the child is older than when the Orders were made; and
(ii)He says that X (at least in April 2019) was “asking to spend more time with” him.
(g)The father’s, again self-prepared, affidavit filed 20 October 2021, appears almost entirely to be directed to respond to the mother’s application he be declared “a vexatious litigant”. I will deal with those assertions by the father later in these Reasons;
(h)Whilst I accept the father’s case should be taken at its highest and that the rule in Rice & Asplund is a manifestation of the best interests of the child as the paramount consideration, really he points to little evidence (other than past grievances and attacks on the mother) that represent any material change, however for fairness (and directing my attention to the child’s best interests), the uncontroversial facts appear to be:
(i)when X was interviewed by Family Consultant Ms E on 6 July 2021, she is recorded as expressing the following views:
28.X age 10 years, said she moved with her mother to J Town last year, and spoke positively about living and attending school in the town. She said she lives with her mother and her sister Ms L. When asked if she spends time with her father, X said it depends on what he wants. She said her mother tries to invite her father to attend events/occasions but said it often depends on where he is. X stated her father packed up all her belongings and “walked out of my life”.
29.She reported having a strong relationship with her father when she was young and said she still has a relationship with him but felt that it was not as strong and “not a normal father/daughter relationship… when it suits him”. X said she last spent time with her father 12 months ago in H City, and talks to him on the phone every Sunday. However, she said it was not long ago that he began ringing her again i.e. start of Term 2. X reported her father often asks the same questions i.e. how she is, asks about the weather, and wants to know where she is.
30.X discussed how her father seems to have a new job, and how he tells her he gets “sacked” all the time. She provided further insight into her relationship with her father and stated she does not know her Dad’s favourite things and felt she does not know about the basis things about him.
31.X said she does not really want to spend time with her father and did not like going to his house as they did the same things each time. She said she became bored when she spent time with her father and stated they never went to the movies or did activities she liked to do. She stated her father took her fishing once, which she did not enjoy because her father became frustrated because they did not catch anything and then they left.
32.She told the Family Consultant that she believes her father is dangerous and explained how she was attached to some mice at his house however, he took them to feed a friend’s pet. X said she felt scared once when her father took her phone from her and hit her hand.
33.X said she has asked her father to stop referring to himself as “Daddy” because she does not like it and said her father has accused her mother of preventing her from talking on the phone. She asserted her mother never talks badly of her father.
34.X thought she might like to see her father once a year, and indicated she was hurt by her father when she said she does not want him to walk out on her again. She said she was angry with her father for ‘walking out on her’.
(ii)the father had maintained fairly consistent contact with X until he moved away from H City in June 2020 at the time of the hearing before the last physical weekend visit had occurred on 6/7 June 2020;
(iii)Weekly telephone calls have occurred but also there are times when it has been interrupted – including by the mother between 8 November 2020 and 29 March 2021. The mother alleged (see paragraphs 24 to 26) that the child does not want to speak to the father, however consistent with her position that the current Orders remain in full force and effect, she says, “I am willing to continue to facilitate the phone calls so that X and Mr Conner can begin to repair their relationship”.
DISCUSSION
I agree with the written submissions of Mr Raeburn of Counsel for the mother at paragraph 26, that the reinstitution of these proceedings is, simply put, “more of the same”. The father’s focus on the mother, the Court and the family law system remains unchanged.
Even allowing for the father’s vulnerable state and the impact of Covid-19 restrictions, there is in my assessment insufficient evidence of any change in circumstances.
In circumstances where the mother does not seek to vary current Orders, it is mere speculation as to how the attitude of X to maintaining a relationship with her father (now that she is 11 and a half years of age), if the father consistently demonstrates taking up all the opportunities to spend time with the child the current Orders prescribe.
When interviewed for the Child Inclusive Conference, X’s views reflected a desire for the father to not involve her in disputes with her mother, but to concentrate on spending quality time with her consistently. Like all children approaching their teenage years, she wants her father to communicate with her about things important to her and to listen.
I agree with the concerns expressed by the mother (at paragraph 115) that further involvement by X in Court proceedings could have an adverse effect on X’s emotional wellbeing. It is to be remembered that the parties separated in April 2012 (when X was 18 months of age) and have been litigating since 2013.
The mother, who has been the consistent primary carer of the child since separation, says (at paragraph 116) that the:
…ongoing conflict and litigation has had a serious impact on my own health and finances, and is now starting to have a more deeper impact on X emotionally.
For these reasons, it is not in the best interests of X at this time to allow the father’s parenting application to proceed further.
I will order that it be dismissed.
APPLICATION FOR THE FATHER TO BE DECLARED A “VEXATIOUS LITIGANT” PURSUANT TO S102QB OF THE ACT
The relevant statutory provisions to be considered are as follows:
(a)The power to make a vexatious proceedings order is found in s 102QB of the Act as follows:
(1)This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2)The court may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c)any other order the court considers appropriate in relation to the person.
Note:Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3)The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a)the Attorney-General of the Commonwealth or of a State or Territory;
(b)the appropriate court official;
(c)a person against whom another person has instituted or conducted vexatious proceedings;
(d)a person who has a sufficient interest in the matter.
(4)The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5)An order made under paragraph (2)(a) or (b) is a final order.
(6)For the purposes of subsection (1), the court may have regard to:
(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)orders made by any Australian court or tribunal; and
(c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
(b)Where such an order is made, s 102QE of the Act provides the means whereby a person prohibited may seek leave of the Court to commence proceedings, providing:
(1)This section applies to a person (the applicant) who is:
(a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b)acting in concert with another person who is subject to an order mentioned in paragraph (a).
(2)The applicant may apply to the court for leave to institute proceedings that are subject to the order.
(3)The applicant must file an affidavit with the application that:
(a)lists all the occasions on which the applicant has applied for leave under this section; and
(b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
(4)The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
(c)Section 102QG is concerned with the granting of leave if it has been sought by a person who is the subject by an order under s 102QB; and
(d)Where a person who is subject to a vexatious proceedings order, and where in contravention of that order the person commences proceedings (without seeking or being granted leave to do so), s 102QD sets out sanctions which may follow such a contravention.
I have set out the legislative pathway in this matter to assist the unrepresented father in better understanding how to navigate the system in the future because for the reasons which follow I do make an order pursuant to s 102QB of the Act, namely:
(a)although I regard the father’s desire to spend time with X is genuine and not frivolous, his repeated Applications for increased time without a basis identified (other than his frustration and disappointment with the Orders made in 2015) are in my view Applications filed without reasonable grounds (s 102Q(1)(c)). It is clear that his views about the mother fuel his Applications;
(b)I am not satisfied the father has commenced proceedings with the intent to “harass or annoy” the mother, although that has been a consequence, only aggravated by his behaviour in commencing proceedings and then discontinuing those proceedings. To do so, he has caused the mother and the public purse (though the engagement of Legal Aid funding reports and an Independent Children’s Lawyer) to incur expenses;
(c)I do not ignore the father’s mental health challenges and how it appears to cause him difficulties in maintaining initiated proceedings, however the mother is dragged into these applications;
(d)the father, if he considers the Reasons published today for dismissing his current parenting Application, will see a pathway forward that begins with him consistently exercising time under the current orders; and
(e)the making of the s 102QB order is not to prevent him from bringing future applications, but rather to require him to obtain leave first, at which time he can demonstrate at least an arguable case for a variation to the current limited time Orders, based on a change of circumstances of a material nature BEFORE the mother is required to respond.
For these reasons, the Court orders that the father, Mr Conner, is prohibited from instituting proceedings under the Act against the mother, Ms Elwyn, or in relation to the child, X (born in 2010) without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.
COSTS
The mother seeks an order for costs however the father elected not to file any submissions as to costs nor have I any evidence as to his financial circumstances.
In the circumstances, I believe now that the orders set out at the commencement of these Reasons have been made, that the mother should support her claim for costs by filing and serving written submissions both as to liability and quantum. I accept that the mother has filed a “Notice of Costs” on 27 October 2021 which gives an estimate of what appears to be indemnity costs and disbursements totalling $20,894.83.
I will invite submissions by reference to s 117 of the Act, where the mother establishes it is just in the circumstances to depart from the usual rule set out in s 117(1) (where each party bears their own costs) and further explains the actual quantification of costs on the relevant scale before, if asserted, it is the mother’s intention to seek costs on an indemnity basis because of some exceptional circumstance.
The father must be at least given the opportunity to respond with written submissions. The directions set out at the commencement of these Reasons prescribe a timetable for submissions which will be considered in chambers.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 21 March 2022
APPENDIX ONE
Parenting Orders
1.The Child X born in 2010 (“the Child”) live with the Mother.
2.The Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the Child, including but not limited to:
- a child’s education (both current and future);
- a child’s religious and cultural upbringing;
- a child’s health;
- a child’s name.
3.The Child spend time with the Father specifically as follows:
- On Saturday and Sunday of the first complete weekend in any month from 9:00am until 2:00pm each day, with the time to be spent in and around H City on the condition that the Father is to confirm his availability to no later than fourteen (14) days prior to the date. If the Father fails to confirm his availability, the Mother is under no obligation to make the Child available.
4.Apart from the time referred to in these Orders herein, the Father is restrained from contacting the Mother to request additional or varied time with the Child and the Mother is under no obligation to answer such enquiries from the Father.
Overseas Travel
5.The Mother is permitted to remove the Child X born in 2010 from the Commonwealth of Australia at times put forward by her in order to:
- travel overseas with the Child as required as part of her employment; or
- travel overseas with the Child for purposes of holidays.
6.Whilst the Mother is overseas for either reason, the Father’s time with the Child is suspended and, in the event that the Mother is overseas on the first complete weekend of a month, she is entitled to nominate another weekend for the Child to spend time with the Father.
Holiday Time
7.The Child spend uninterrupted time with the Mother at Christmas for a three week block period, either the first or second half of the holidays as nominated by the Mother, and the Mother is permitted to suspend the Father’s time during the June/July school holidays each year.
FaceTime Communication
8.The Child spend FaceTime with the Father facilitated by the Mother on Sunday morning at 8:00am until no later than 8:20am NOTING the age of the Child.
9.The Mother is permitted to supervise FaceTime and, if the discussion is considered repetitive or inappropriate given the Child’s age, the Mother is at liberty to disconnect the call.
Passports
10.The Mother and Father do all acts and things to ensure the Child’s passport is renewed no later than six (6) months prior to its expiry.
11.The Child’s passport is to issue notwithstanding that the Father does not sign any of the passport applications NOTING THAT the Court is satisfied that the passport application will be deemed to be appropriate if it is signed solely by the Mother.
Other Orders
12.The Independent Children’s Lawyer is discharged within 28 days of the date of these Orders.
13.All outstanding applications are removed from the pending cases list.
APPENDIX TWO
1.That the Application for Contravention filed on 23 October 2015 is dismissed.
2.That Order 3 (a) of the Orders of 18 May 2015 is varied to read as follows:-
3. The Child spend time with the Father specifically as follows:
- On Saturday and Sunday of the first complete weekend in any month from 9:00am until 2:00pm each day, with the time to be spent in and around H City on the condition that the Father is to confirm his availability in writing to the Mother no later than fourteen (14) days prior to the date. If the Father fails to confirm his availability, the Mother is under no obligation to make the Child available. The notice referred to herein, is notice by email from the Father to the Mother. Upon receipt of that notice, the Mother is to confirm that she has received the email and that contact will occur in accordance with the Orders. Further, the notice provision is to be given no later than fourteen (14) days prior to the commencement of the weekend occurring, each and every month that the Father intends to exercise with the child and not by way of blanket notice that he will be spending time with the child for all of the months ahead to reflect the intention of the order, to avoid any further misunderstanding by the Father, or moreover, any other interpretation by him.
3.The Father is to spend make-up time with the child X born in 2010 (“the child”) for time lost on 7 and 8 November 2015 as the Mother was stranded in Country K. The make-up time is to occur on the weekend of 12 and 13 December 2015.
4.All outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.
NOTATION:
A.So as to prevent any further misunderstanding in relation to the requirement of Order 3 (a) the Court has explained to the Father today the requirement for notice is a requirement for him to give the Mother specifically (not the child) notice of his availability to spend time with the child, and that such notice is to be by email. The Court has also explained the rationale and that it is not the intention of the Court for the Mother to be on standby each allocated weekend with the Father only telling the Mother when he is not going to take up weekend time. Quite the opposite is the case, and the Mother is only to provide the child to the Father, when he complies with the notice provision. To save any further disagreement Order 3 (a) has been varied to reflect precisely what notice provision is required and to prevent any other interpretation of this Order by the Father.
APPENDIX THREE
1.That the Initiating Application filed on 18 May 2016 is discontinued. All outstanding Applications are removed from the pending cases list.
NOTATION:
A.THE COURT NOTES THAT the Mother advises that she is not seeking any Orders at all and has only responded to the Father’s Application. The Mother has also indicated that she has been invited to dispute resolution only months after the final orders were made.
B.The Court has advised the Father that if he files any further Application, his Application will need to meet the legal threshold in relation to Rice v Asplund given the lengthy litigation that has taken place in this matter which consumed the Court’s time from 2013 up until November 2015.
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