Dalavi & Panja
[2022] FedCFamC1F 255
•4 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dalavi & Panja [2022] FedCFamC1F 255
File number(s): SYC 3199 of 2021 Judgment of: SCHONELL J Date of judgment: 4 April 2022 Catchwords: FAMILY LAW – PARENTING – Interim Orders – Where the mother resides in Country E – Where the mother sought for the parties’ child to travel to Country E for the upcoming school holidays – Where the father opposed the application – Where the s 60CC primary and additional considerations of the Family Law Act 1975 (Cth) were considered – Where it was found that there was a risk of the mother not returning the child – Application dismissed – Costs order made. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL, 117 Cases cited: De Luca & Farnham & Anor [2019] FamCAFC 100
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26
Line v Line (1997) FLC 92-729; [1996] FamCA 145
Division: Division 1 First Instance Number of paragraphs: 60 Date of hearing: 4 April 2022 Place: Sydney Counsel for the Applicant: Mr Teoh Solicitor for the Applicant: Danielle Quinn Solicitor Counsel for the Respondent: Ms Shea Solicitor for the Respondent: Lander & Rogers Solicitor for the Independent Children's Lawyer: Christina Lam & Associates ORDERS
SYC 3199 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DALAVI
Applicant
AND: MR PANJA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
4 APRIL 2022
THE COURT ORDERS THAT:
1.The mother’s Application in a Proceeding filed on 5 November 2021 is dismissed.
2.By consent, Orders are made in accordance with paragraphs 11 and 12 of the Independent Children’s Lawyer’s Case Outline document filed on 30 March 2022 as set out hereunder:
11.That each party shall forthwith and within seven (7) days contact C Services on … for the purpose of enrolling X in the D Program and subject to assessment of suitability, each party shall then:
a.ensure that X attends and participates in counselling on such times, dates and places as may be advised; and
b.equally pay such fees as may be charged.
12.Pursuant to s13C, the matter be fixed for a court registered assisted dispute resolution conference.
3.Leave is granted to the respondent father to make an oral application for costs.
4.The mother pay the father’s costs fixed in the sum of $8,000 within three months from the date of the making of these orders.
5.Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
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 Dalavi & Panja is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
These are interim proceedings where the mother seeks orders for the parties’ child, who is age 12 years, to travel to Country E for the upcoming school holidays.
The father opposes the mother's application. The proceedings are part of a wider dispute about the long term living arrangements in relation to the child in circumstances where the mother lives in Country E and seeks that the child live permanently with her in that country, whilst the father seeks orders that the child live with him in Australia. No final hearing date has been set.
The mother relied upon a number of documents that are listed in her Case Outline. The father for his part relied upon the number of documents, which are identified in his Case Outline. The ICL filed a comprehensive Case Outline and broadly supports the mother’s application. Documents were tendered by the father, and I have read all of the material filed in the proceedings.
BACKGROUND FACTS
The parties were married in 1999 and separated on 5 December 2014. There is one child of their relationship who was born in 2009
An order was made for equal shared parental responsibility and other orders in relation to time on 8 April 2016. I am told that those orders have now been suspended.
There has been prepared a Child Impact Report dated 29 November 2021. Paragraph 5 of that report records:
5. The parents agree that X was cared for mainly by Ms Dalavi during the parents’ relationship. They also agree that Mr Panja worked fulltime, but that he was an involved and engaged parent whenever available. X was approximately five years of age at the time of the parents’ separation. Ms Dalavi and Mr Panja have provided competing accounts of X’s care at this time. X apparently lived mainly in an equal time parenting arrangement from April 2016, according to consent orders. …
In the mother's affidavit of 4 May 2021 at paragraph 6, she states that on 19 October 2020 she left Sydney to travel to B City, that it was a business trip, and her intention was only to stay in B City temporarily and return approximately two weeks later.
The father’s counsel points to documents in Exhibit 1 that stand inconsistent with this proposition. The father says that this trip was without notice to him or the child. That fact of itself does not seem to be an issue.
In her affidavit of 4 May 2021, the mother says:
7. In November 2020 I attempted to return back to Sydney and faced problems due to travel restrictions and border closures. I have been trying to return back to Australia however all attempts have been unsuccessful. I have attached my tickets and documentation in relation to my attempts to return. Annexures hereto and marked with the letter "A" is a true copy of such documentation.
8. Since I have commenced residing in B City I have spent a considerable amount of time developing my business which has flourished into a thriving success. I have decided to permanently reside in B City, Country E and I am of the firm view that I will be able to provide X an extremely comfortable lifestyle here in B City, Country E.
The father in his affidavit responds as follows:
13. On 14 October 2020, Ms Dalavi and I exchanged the following text messages:
Ms Dalavi: Hey Mr Panja. Can you please mind X from 17 Oct till 22 Oct? I’m heading off the Brisbane for my business.
Me: She is with me that week Ms Dalavi
Ms Dalavi: Its from this Saturday Mr Panja. She’s with me.
Me: Oh ok, sure! Btw, the QLD borders are still shut for Sydney, I thought?
Ms Dalavi: It is. Opened for me
14. On 18 October 2020, Ms Dalavi delivered X to my home and she said words to the effect of “I’m flying in the afternoon and will return to Sydney on 22 October 2020.” I responded words to the effect: “Do you want me to drop of you off to the airport?” to which Ms Dalavi replied words to the effect: “No.”
15. On the evening of 18 October 2020, I said to X words to the effect: “X, why don't you call your mummy to say goodnight.” After that phone call, X said words to the effect of: “Mummy missed her flight. She is staying in the city and will fly to Brisbane tomorrow morning.”
(As per the original)
The mother filed a further affidavit on 18 March 2022, and in that affidavit she said she was filing it to, in part, respond to some matters raised in the father's affidavit. Those matters would presumably have included the matters I have just referred to at paragraphs 13, 14 and 15. She has not disputed the evidence of the father referred to earlier.
On one version of the evidence, the mother was untruthful. That is the conclusion that the father's counsel asked that I draw. There may be other explanations that the mother would proffer, but she has not done so today.
It is common ground that since leaving Australia in October 2020, the mother has, other than in relation to a visit in July 2021, not seen the child.
In relation to the visit in July 2021, the mother says in her affidavit of 5 November 2020, the following:
7. On 28 April 2021, 14 May 2021 and 25 May 2021, my solicitor corresponded with the Respondent Father's solicitor Lander & Rogers, regarding my desire to spend the Term 2 School holidays with my daughter. Due to the unpredictable situation in relation to border restrictions at the time, I was unable to commit to a date. Annexed hereto and marked with the letter "A", "B" and "C" are copies of letters exchanged with Lander & Rogers and my solicitor. (Enclosures referenced in the letter are excluded as they are not related).
8. I was making arrangements to travel to Sydney for the June/July school holidays. Unexpectedly, I managed to obtain a flight to Sydney on 17 June 2021 and I was in hotel quarantine until 1 July 2021. I paid over $13,000 for the flights and hotel quarantine.
9. I did not notify anyone including my family in Australia because I was not sure whether I would be able to board the flight. At the time, flights were being cancelled once passengers arrived at the airport. Most importantly of all, I wanted to surprise my daughter with my unanticipated arrival.
10. On I July 2021, I completed 14 days in quarantine in accordance with the public order set out under Section 7 of the Public Health Act 2010 and headed straight to the Respondent Father's house to see X.
11. I arrived at the father's home in Suburb F and called his mobile phone. We had a conversation as follows:
Me:“I’m outside, I want to surprise X. Please quickly bring her outside, I can't wait to see her. I'd like to take her for her school holidays.”
Mr Panja: “What are you doing here? Why are you here?"
Mr Panja then walked to the front gate of the property and said:
Mr Panja:“No, you can't see X. I need to talk to you first. Have you quarantined? Where are your quarantine papers?”
12. Mr Panja did not let me pass the front gate. X then came outside and asked Mr Panja for her passport and said:
X:“I want to go with mummy. Where is my passport?”
Mr Panja:“I’ve got it and I’m not going to give it. Go inside, X.”
13. I hugged my daughter and then the father told our daughter to go inside.
14. I saw my daughter that day for a minute at most. Prior to that occasion, I had not seen her since 19 October 2020. I boarded a flight to return to Country E that same night as I couldn't be with my daughter and Sydney was in lockdown.
(As per the original)
That evidence raises more questions than it answers. Why did the mother not contact the father upon arrival in Australia and whilst she was in quarantine for 14 days? Why did the child ask the father for her passport if the visit of the mother was only for the purposes of a holiday? It seems from concessions made by her counsel, that she intended to take the child overseas. If that was her intention, then it was clearly without any prior notice to the father and contrary to the existing order for equal shared parental responsibility
In relation to this visit, the father gives evidence set out in the following paragraphs of his affidavit:
23. Further, in June 2021, following unusual behaviour from X, I checked X's phone and found the following WhatsApp messages from Ms Dalavi to X:
(a) On 21 June 2021: “I need you to keep your passport and OCI with you ok…it's very important you don’t speak to anyone about this please.”
(b) On 23 June 2021: “Very soon I will come, and I will wait for you on the driveway… in a taxi and we will leave on a holiday.” X replied: “but isn't that like kidnapping?” to which Ms Dalavi replied: “No stupid, you're my daughter and I have Court custody legally.”
24. Since the commencement of these proceedings, I have had the benefit of reviewing documents produced by the Department of Home Affairs under subpoena which show that on 30 October 2020, Ms Dalavi obtained a travel restriction exemption for X, and Ms Dalavi’s dog, Z, which was authorised on the basis that the traveller would be "travelling overseas for at least three months".
25. On a number of occasions, Ms Dalavi has, directly and through her lawyers, requested that X spend time with Ms Dalavi overseas during her school holidays, including:
(a)On 1 March 2021, I received a WhatsApp message from Ms Dalavi asking me to "send her [X]" to Ms Dalavi during the upcoming school holidays;
(b) On 2 November 2021, my lawyer received a letter from Ms Dalavi’s lawyer seeking my consent for X to travel to Country E with Ms Dalavi in the 2021/2022 Term 4 school holidays.
(c) As a result of the conditions of the travel exemption obtained by Ms Dalavi for X, I do not believe that Ms Dalavi would have returned X to Australia at the conclusion of the school holiday period as promised and that she has not been truthful to me or to the Court about the period in which she sought for X to spend time with her overseas.
Incident on 1 July 2021
26. On the afternoon of 1 July 2021, when I understood Ms Dalavi to still be living overseas, Ms Dalavi attended my home without notice and attempted to remove X from my care without my consent as follows:-
(a) At 4.50pm, I received a phone call from Ms Dalavi, who said: “I’m outside. Let me in.” I understood that Ms Dalavi was at the security gate of my townhouse complex, some 100 metres from my front door.
(b) I started to walk towards the security gate. When I was speaking to Ms Dalavi at the gate, X emerged from the house. I said to X words to the effect: “What are you doing?” and X replied words to the effect: “Mummy called me and asked me to come out.” As I wished to speak to Ms Dalavi first given her unexpected arrival, I called out to X: “Get back inside please X!” Ms Dalavi then started screaming: “You can't do this Mr Panja! I am going to call the Police!” X became distressed and started crying and said words to the effect: “I have to go Daddy. I don't want you to get arrested, Daddy!”
(c) I said to X words to the effect: “I won't get arrested X. Everything will be fine; I just need to talk to Mummy.” I accompanied X outside the security gate and she and Ms Dalavi embraced.
(d) Ms Dalavi and I then had a conversation about Ms Dalavi’s plans, including words to the following effect:
Me: Where are you staying in Sydney? If X is to go with you I need to know where she will be.
Ms Dalavi: My lawyer says I don't have to tell you until 24 hours after I take X. You agreed I could have her during the school holidays.
Me: I don't know what you've been doing or where you've been! Have you quarantined? You've been in India - can you show me paperwork that you've quarantined and had a negative Covid test?
Ms Dalavi: I have quarantined. I don't need to show you shit.
(e) Ms Dalavi then repeatedly said words to the effect: “Give me X's passport and her OCI NOW! We're going.” I continued to say to Ms Dalavi words to the effect: “I will not give you her passport Ms Dalavi. I don't agree for X to leave the country, I have told you this!” Ms Dalavi then stood up and said: “I want her passport and OCI. You have no right to keep it. I am going to the Police.” I asked Ms Dalavi: “What should I tell X?” who replied with words to the effect: “Tell her I will be back”.
(f) Ms Dalavi then left. Afterward, X said to me words to the effect: “Mummy told me she was coming at 5pm today, so I knew. I'm sorry I didn't tell you Daddy. I don't want to play favourites.”
(g) Following this incident, I did not receive any call, text message or other communication from Ms Dalavi. Based on conversations I subsequently had with X, I understand that Ms Dalavi did not contact X until the following night. In the meantime, I observed X to be anxious and she asked me over 10 times that evening: “When are the police coming?
(h) On 2 July 2021, being the following day, I caused my lawyers to write to Ms Dalavi’s lawyers regarding the incident, seeking various particulars and undertakings as a matter of urgency. As my solicitor did not receive any response from Ms Dalavi’s solicitor, I caused my lawyers to follow up Ms Dalavi’s lawyers on 8 July 2021. Ms Dalavi’s lawyers partially responded to the letters on 15 July 2021. Annexed hereto and marked MP-2. are true copies of the letters from Lander & Rogers to DQ Solicitors dated 2, 8 and 26 July 2021, and the letter from DQ Solicitors to Lander & Rogers dated 15 July 2021.
27. I was distressed that Ms Dalavi had placed the burden of parenting arrangements on X and the effect this may have had on X's mental state. For this reason, I again checked X's mobile phone the following morning and noted that Ms Dalavi had been sending C WhatsApp messages throughout the day on 1 July 2021, telling X to locate her passport, that she would be coming to collect her and for X to leave the house and not tell anyone. Examples of such WhatsApp messages are below:
(a) Between 11.57am to 11.57am, Ms Dalavi sent X various WhatsApp messages stating:
“I’m getting out of quarantine today at 4pm. I will come to pick you up around 5pm or just before… When I message you 30 mins before I want you to ask Grandmother for your passport... I’ll wait in the taxi for you on the drive way.”
(b) At 12.01pm, the following messages were exchanged between Ms Dalavi and X:
X: What if they call the police
Ms Dalavi: They won't because daddy will get arrested
X: Nooo…I don’t want him to be
(c) X was visibly distressed responding throughout the day stating: “I’ll be too scared”, “I’m so scared”, “I’m sooooo scared.”
(d) X repeatedly asked Ms Dalavi: “where are we going,” “when will I be back”, and “can you just tell me where we are going?”. Ms Dalavi responded at 12.06pm saying: “Not now X…Make sure you're home please. Not a word to anyone.”
(e) At 12.07pm, Ms again said: “I can get him arrested if I want” and X responded: “NO PLEASE DONT.”
(f) At 12.09pm, Ms Dalavi texted X: “But don't you want to be with mummy?” X replied: “Yeah I guess.”
(g) At 4.38pm, Ms Dalavi sent X a WhatsApp messaging stating:
Hi X. Could you please ask Grandmother for the passport and OCI now? Say you want to see what countries you’ve been to. Go upstairs and sit in the room with it please. I’ll be there soon and I’ll come in the house and call you. Come down and give it to me in my hand please. I love you. You can do this. Trust your mummy.
Annexed hereto and marked MP-3. are true copies of the WhatsApp messages exchanged between X and Ms Dalavi from 21 June 2021 to 1 July 2021.
(As per the original)
As I indicated earlier, the mother has elected to file an affidavit in reply but has not denied sending the various WhatsApp messages that are referred to in those paragraphs
The family consultant records a conversation that she had with the child at paragraph 9 of the Child Impact Statement. Relevantly, for the purposes of this application, it is recorded that the visit in July or June 2021 was a highly stressful experience. She records X saying to her that:
9. … her mother “had messaged me before and said she'd come to get me, but not tell Dad”. She said that she was “very scared” and her parents were “too engrossed [in their conflict] to notice me”. …
That is a terrible position for a child to be left in. The family consultant records:
9. … According to X, Ms Dalavi wanted her to return to Country E with her, which made her (X) feel “sad” and concerned. X said that this is because “all my family and friends are here”, and she does not want to live in Country E.
The evidence of the father and the family consultant is very concerning. The mother has elected to give no evidence whatsoever qualifying, denying or putting this evidence in a context. On one view of this evidence, the mother was attempting to remove the child from Australia without notice to the father. It clearly was a terrifying incident for this little girl. There may be other explanations, but the mother has declined to give them
The father in his affidavit refers to other statements made by the mother. At paragraph 22 of his affidavit, he refers to WhatsApp messages from the mother to him in February 2021, March 2021 and April 2021. In particular, the message on 1 March 2021 is most concerning, which records a message from the mother to the father “[y]ou won't win the court case and you'll never get to see her again”.
Again, the mother has elected not to respond to this, and I must for the purposes of these proceedings, assume it is not in dispute.
The father points to text messages sent by the mother in August 2021 and October 2021 at paragraph 47. At paragraph 47(b), the father refers to a text sent by the mother to X to this effect:
47. …
(b) On 8 August 2021, Ms Dalavi sent the following WhatsApp message to X: “X can you please answer?... Your mummy has cancer and she could be dying. So please answer when I call you…I didn’t get the phone for you so you don’t pick up. Can you please let you [sic] Daddy know this?”
At paragraph 47(c), the mother sends the child a text to this effect:
47. …
(c) … “That’s great Princess! That will be a perfect farewell for you before you come to Country E to be with mummy.” …
The mother in her affidavit does respond to these at paragraphs 29 and 30 in her affidavit of 18 March 2022. In relation to the text about her possibly dying, the mother says that it was inappropriate and that it was a momentary lapse in judgement. I agree with the mother's evidence. It was an entirely inappropriate statement for her to make to her little girl. The mother says it was a momentary lapse in judgement. Whether it was is a matter for a final hearing However, the mother’s judgement is a critical issue before me.
The mother gives evidence as to her current state of health in her affidavit of 18 March 2022 at paragraph 24:
24. I have been diagnosed with lymphatic cancer, although this is slow growth cancer, called follicular lymphoma. I take care of myself here and have not needed to see a doctor for the past twelve months. I am very capable of looking after X as I was diagnosed in 2018, and was looking after her then, working full-time, and writing a book. Annexed hereto and marked with the letter "C" is a copy of a letter and my medical report from G Medical Centre.
She also says the following at paragraph 37: “It is extremely important for X’s development that I am in her life at this time”. I agree with that statement. It is absolutely fundamental for this little girl's development that she have both her mother and her father present as much as possible in her life.
I am troubled, however, with the mother's statement to the family consultant at paragraph 5, where the consultant records following:
5.… At the conclusion of Ms Dalavi’s feed-back interview, she stressed that she does not intend to return to Australia to live or spend time with X. …
There is no evidence before me that the mother's health is an impediment to her ability to visit her daughter in Australia. It does not appear to have been an impediment in July 2021, and I note her evidence at paragraph 34 of her affidavit of 4 May 2021, where she refers to intending to take her daughter travelling to places such as India and Country H.
APPLICABLE LAW
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), my reasons are by necessity short. This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to disputed facts.
Notwithstanding such indisputable proposition, submissions were put to me to the effect that I could draw some conclusions from inconsistent assertions. Save and except where matters are agreed, there is a difficulty in me doing so. The best I can do is resolve the matter on the undisputed facts and the objective material where there is no issue drawn.
Parenting proceedings are governed by Pt VII of the Act. Section 60CA of the Act provides that the Court is to regard the best interest of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child's best interest, the Court must consider the matters set out in s 60CC. Section 60CC outlines the primary and additional considerations that the Court is required to take into account.
The Full Court in Goode & Goode (2006) FLC 93-286 set out the procedural steps in an interim application. An order permitting a child to leave the jurisdiction is clearly a parenting order. Authorities such as Kuebler & Kuebler (1978) FLC 90-434, Line v Line (1997) FLC 92-729 (“Line v Line”) and De Luca & Farnham & Anor [2019] FamCAFC 100, identify a number of factors that are relevant to a determination that I am required to make in assessing the risk of return of the child to Australia.
I address as follows, such things as are relevant. I note that Country E is a convention country and that the mother has proposed a bond of $10,000. However, as the Full Court in Line v Line, observed at [4.50] as follows:
4.50… However, in considering and deciding what weight to give to this factor, the Court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country.
I cannot, in light of the inconsistencies and anomalies in the evidence that I have earlier referred to, ignore this possibility. I do not regard the size of the bond proffered as any incentive to return in light of the mother's evidence as to her wealth.
Again, in Line v Line, the Full Court said at [4.48], the following:
4.48.… the two-fold purpose referred to in the submissions of counsel for the husband and set out in paragraph 4.42 above namely:
(a) to provide a sum which will realistically entice the person removing the children to return; and
(b) to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.
I am not satisfied that the security offered by the mother meets either of these requirements. I am required to consider the ties or connections of the mother to Australia. She has made it plain that she does not intend to return. She gives no evidence of ties to Australia other than some family but in light of her stated intention, I place little weight on any asserted connection to Australia.
I am required to consider the existence and strength of motives not to return, including the level of conflict between the parties. The parties are in high conflict. The mother holds a very negative and disparaging view of the father as is clear from her own communications, which are in evidence. I further note correspondence from the wife’s solicitors dated 7 February 2022, which appears at page 53 of the annexures to the father's affidavit. The first paragraph of that letter records the following:
As you are aware, the parties have an acrimonious relationship and they are consistently in conflict. It is clear there is a breakdown of communication. Their relationship is untenable despite what you advise in correspondence. …
The last paragraph of that letter records:
… Clearly, they cannot communicate and, in these circumstances, the only alternative is for the parties to communicate through the legal representatives on matters which are of a serious nature involving X.
I note the evidence of the father and the threats made by the mother that I have earlier referred to, that he will never see the child again. These threats create a foundation for a submission as to risk, the threats are not denied.
The mother has established a life in Country E including friends, family, a business and a home. That is a strong motivation not to return.
I now turn to consider the s 60CC considerations such as are relevant to my determination. In applying the primary consideration, the benefit to the child of having a meaningful relationship with both of her parents is subservient to the need to protect the child from the risks and harms identified in the subsection.
Both parties consider it important that the child have a meaningful relationship with the other parent. They just differ as to how it should occur.
As stated earlier, I am required when applying the primary considerations to give greater weight to the need to protect the child from risk and harm than to the benefit of having a meaningful relationship with both parents. The mother asserts to the family consultant that there has been family violence, but I note, also swears in her affidavit of 4 May 2021 at paragraph 45 that there is no history of family violence. I am simply unable to make findings on the evidence other than to note the allegations and clearly to act cautiously.
In determining what is in the best interest of the child, I will now consider the additional considerations so far as they are relevant, and the extent to which I have not already considered them.
As to the child's views, I accept that she does want to see her mother desperately. I note what is contained at paragraphs 9 and 10 of the Child Impact Statement. I accept that the child does have a relationship with each of her parents. The evidence such as it is, makes it plain that on the application of either party, on a final basis, there will be a separation of the child from each of her parents. I note the evidence of the child court expert at page 10, which I was referred to by counsel for the ICL. It records the following:
26.It would possibly be beneficial if X had an opportunity to spend time with Ms Dalavi in Country E before any firm commitment is made to X relocating. This would provide X with the opportunity to spend time with Ms Dalavi in the maternal domain and familiarise herself with aspects of her mother’s life and Country E culture.
I accept that there is great force in that proposition made by the family consultant but, it assumes that I am satisfied the mother would return the child, which I am not.
In the absence of an inability to cross-examine the mother, there are too many risks attached to her application. I conclude that it is not in the best interests of this little girl to make the orders that the mother seeks. The mother has made threats to not return the child, the circumstances of her coming to Australia in July 2021 were entirely unsatisfactory, and too much remains unexplained about her motivations and intentions. She has no financial ties to Australia and has made her life in Country E. There is a high degree of conflict and animosity between the parties, and the level of security provided in light of the risks is woefully inadequate. I dismiss the mother’s application
I make Orders 11 and 12 in the ICL’s Case Outline by consent.
COSTS
This is an application by the father for costs following an interlocutory hearing, where the mother sought orders permitting her to take the parties child overseas to Country E for a holiday.
During the course of the proceedings, I delivered an ex tempore judgment dismissing the mother’s application and the father’s costs application arises in that context.
The mother’s counsel identifies, quite properly so might I say, that the mother was wholly unsuccessful in the proceedings, but contends that the application was brought to enable her to see her child, and that there were enormous benefits for the child if the application had been granted to experience the mother’s culture in Country E.
I accept all of that. It is very apposite to the application, save and except for the questions of risk, and it is still unexplained before me as to why it is that the mother cannot come to Australia to see her daughter. The reasons why that is, do not bear upon the question of costs.
The general rule and application for costs is that each party pays their own costs. Costs in this Court do not follow the cause. That general rule, however, is subject to the provisions of s 117(2), which provides that a Court may make such order for costs as it considers just, if the Court is of the opinion there are circumstances that are justified in doing so. Section 117(2)(a)–(f) set out matters that are required to be taken into account.
As counsel for the mother properly said, no one factor is determinative. Indeed, a Court can make a determination based solely upon one factor.
There is limited evidence as to the financial circumstances of the parties. I am told from the bar table that the mother pays no child support. There is some evidence of the mother's cash at bank. At a particular point in time she has a business, she gives evidence of intending to travel quite extensively through Europe, and she proffered a bond of $10,000. However, numerous Full Courts have made it plain that impecuniosity is no bar to making an order, and even parties in modest or very poor financial circumstances can still be the subject of a costs order.
No submission is put to me that the parties or either of them are in receipt of legal aid. There is no matter in relation to the conduct of the proceedings that I could find as a factor to be taken into account in these proceedings nor is there an issue of a failure to comply with an order that has led to the prosecution of this application.
I am of the view that the fact that the mother has been wholly unsuccessful is a significant factor in the proceedings. It is litigation that has come at some significant cost to the father as is apparent from Exhibit 3 in the proceedings.
I am not told that there has been any offer of settlement that has been made by either party.
I am entitled and have power to fix a set sum. Exhibit 3 in the proceedings identifies that costs at scale are slightly in excess of $16,000. Counsel for the father properly conceded that it involves both solicitor client and party costs.
Doing the best I can and having had regard to the amounts at scale, I fix costs in the sum of $8000. I order that the mother pay the father’s costs fixed in the sum of $8000 within three months of the date of making these orders.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 4 April 2022
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