Danks and Thomas

[2014] FCCA 2443

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANKS & THOMAS [2014] FCCA 2443

Catchwords:
FAMILY LAW – Parenting – undefended hearing – procedural history and husband's denials of violence inconsistent with the evidence before the court – serious allegations of violence and abuse – presumptions rebutted – orders for costs made.

Legislation:

Family Law Act 1975, s.117

Federal Circuit Court Rules2001, sch.1

Applicant: MR DANKS

Respondent: MS THOMAS

File Number: SYC 693 of 2007

Judgment of: Judge Altobelli

Hearing date: 13 May 2014

Date of Last Submission: 13 May 2014

Delivered at: Wollongong

Delivered on: 13 May 2014

REPRESENTATION

Counsel for the Applicant: Ms Humphreys

Solicitors for the Applicant: Hansons Lawyers

No appearance by the Respondent

Solicitors for the Independent Children's Lawyer: Ms Mowbray of Verekers Lawyers

ORDERS

1. That all previous Orders are hereby discharged.

2. That the Mother have sole parental responsibility for the Children, X, born (omitted) 2003, and Y, born (omitted) 2008 (“the Children”).

3. That the Children shall live with the Mother.

4. That the Children spend no time with the Father.

5. That the Father be restrained from attending the residence of the Children or any school/s where the Children attend or any place the Children may be from time to time and approaching the Children and/or the Mother.

6. That the Father pay the costs of the Independent Children’s Lawyer being the sum of $1,650.00 together with costs of the Interim Hearing/s being a further $770.00 within twenty eight (28) days from the date of the Orders or the Father lodge an Application to waive payment of his share of the Independent Children’s Lawyer fees.

7. That the Father pay the costs of the Mother, being the sum of $11,904, with such costs to be paid within 30 days.

8. That these orders are made in the absence of the Respondent Father and he is at liberty to make such application as he may be advised pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYC 693 of 2007

MR DANKS

Applicant

And

MS THOMAS

Respondent

REASONS FOR JUDGMENT

1. I provide the following ex tempore reasons.  I have made orders on a final basis in relation to two children, X and Y. 

2. The orders I have made on an undefended basis were supported by the Independent Children’s Lawyer, Ms Mowbray.  The orders provide for the children to live with their mother and to spend no time with their father.  Indeed, the Father is restrained from attending the residence of the children and their schools. 

3. An order was made for the payment by the Father of the Independent Children’s Lawyer’s costs, and little, I think, needs to be said in that regard.

4. The matter before me has some elements of the extraordinary.  The Mother’s allegations against the Father were contained in her affidavit of 30 January.  She explains, in effect, that final separation in what appears to have been a tumultuous relationship took place on 15 January following domestic violence.  She asserts in her affidavit that domestic violence or family violence has been a long-standing feature of the relationship.  There was an incident on 15 January that led to the making of an AVO against the Father.  Such was the family violence in question that the Mother moved out of the home with the children and obtained emergency accommodation.  She asserts that the children have been exposed to high levels of family violence. 

5. The matter first came before me on 6 February 2014.  The Father attended by phone with his solicitor, Ms Morris-Corkhill.

6. I made orders setting the matter down for an Interim Hearing on 5 March 2014, and I will come to that.  An Independent Children’s Lawyer appeared on that first date.  It was clear, certainly from the Court’s perspective, and it must have been clear from the perspective of the Mother, the Independent Children’s Lawyer and certainly from the Father that the issues before the Court were very, very serious and that he was being confronted with very serious and detailed allegations about family violence and his criminal behaviour over many years.

7. It is significant that the chronology that is now exhibit A4 was actually presented to the Court on that date.  The precise nature and details of the allegations against the Father were articulated in considerable detail. 

8. As it turns out, the documents that have been produced on subpoena and have become exhibits before the Court corroborate the assertions of fact that are contained in the chronology.  In any event, on the first return date, 6 February, I stood the matter over for Interim Hearing to 5 March.

9. I note from my own notes made on 6 February that the purpose of the adjournment was not just so that the Father could file his material, but also so that the Father’s solicitor could consider the documents produced on subpoena, being the documents that were referred to in the chronology. 

10. When the matter came before me on 5 March, Ms Morris-Corkill and the Father appeared in person.  The Father sought orders that can only be described as bizarre, and that is, that the children live with him and that the Mother be restrained from relocating outside of the (omitted) region and that indeed the children have supervised contact with her. 

11. The Father’s Affidavit can be summarised colloquially as a “Sergeant Schultz” Affidavit.  Sergeant Schultz was a character of a long-running series called Hogan’s Heroes and one of Sergeant Schultz’s most famous lines in the series was, “I know nothing”.  The Father’s Affidavit of 6 February was an “I know nothing” Affidavit.  All the family violence allegations made by the Mother were false.  All the allegations that she made about him about his criminal behaviour, about past apprehended violence orders, about reports to the Department of Family and Community Services were all false.  He knew nothing about them.

12. When the matter came before me on 5 March, if I recall correctly, it was I who suggested to Ms Morris-Corkill that perhaps she should, in the circumstances, check the documents that had been produced on subpoena.  Ms Morris-Corkill who practices on the Central Coast and who travelled to Wollongong for this purpose had apparently not yet availed herself of that opportunity. 

13. In the circumstances where she sought and was granted an adjournment application, I thought it appropriate, given the way that the matter was shaping up, that certain orders be made on an interim basis.  Those orders are consistent with the orders made on a final basis and that is that the children live with the Mother, that there be no contact with the Father and that the Mother have sole parental responsibility. 

14. My own recollection of the Mention before the Court on 5 March is that Ms Morris-Corkill said certain things in open Court that went to, in effect, her client’s innocence of all the matters that were put against him by the Mother.  Certainly this Court’s impression is that she was indignant on behalf of her client about the matters that were being raised against him.  In any event, the matter was set down for further Interim Hearing on 21 March 2014 and on that occasion there was no appearance by or on behalf of the Father.  Judge Kemp set the matter down before me today.  Indeed I have omitted to note in the chronology that the Father discontinued the proceedings on 10 February 2014.  The discontinuance was filed on 20 March 2014, the day before the Interim Hearing.  The matter was adjourned until today.

15. I have gone to considerable detail to set out the procedural history of this matter because Ms Humphreys on behalf of the Mother has expressed some concerns about the procedure that the Father adopted and perhaps of his own solicitor’s conduct in the matter.  That is not a matter for me to comment on.  It may be a matter that will be explored elsewhere.  

16. Suffice to say that on the evidence before the Court, the chronology asserted by the Mother, and it should be noted asserted from day one, is almost entirely established by the documents produced to the Court.  The evidence before the Court suggests that there has been sustained and serious family violence perpetrated by the Father against the Mother in the presence of the children over a long period of time.  In the circumstances, the presumption of equal shared parental responsibility is rebutted.  In the circumstances, it is hard to imagine what benefit there is to these children from spending time with their father.  I have no hesitation in making the orders that I have made.

17. An application for costs is sought against the Father pursuant to Schedule 1 of the Federal Circuit Court Rules2001 (Cth). Whilst s.117(1) of the Family Law Act1975 (Cth) states as a general proposition that each party should pay and bear their own costs, the exceptions to that principle are set out in s.117(2). Subsection (2) is certainly enlivened in this case.

18. Firstly, s.117 (2)(c), the conduct of the parties to the proceedings and the blatant almost gob-smacking, denials of matters by the Father and on his behalf in circumstances where there can be little reason to doubt that either he knew or indeed that his solicitor knew or should have known that some of the matters being put to the Court were patently false. The Father’s behaviour in filing a Notice of Discontinuance when he did. The Father being entirely unsuccessful in these proceedings. This is a very strong case for making an order for costs. It is also an appropriate case to assess costs under Schedule 1. I assess those costs as follows.

19. Firstly, for 6 February 2014, pursuant to Item 1 of Schedule 1, the sum of $1,994 together with $271 being the daily hearing fee.

20. For 5 March 2014, which I will treat as an Interim Hearing and therefore under Item 2, $2,494 together with the daily hearing fee of $997.

21. For 21 March 2014, yet another Interim Hearing, a further stage 2 sum of $2,494 together with $997 as the daily hearing fee

22. And then today which I will treat as a summary matter under Item 3 and therefore $1,661 together with a daily hearing fee of $997. 

23. The total of those costs is $11,905.  I order the Father to pay the Applicant Mother’s costs in the sum of $11,905, such cost to be paid within 30 days.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:       10 November 2014