Demarco and Demarco

[2016] FamCA 270

FAMILY COURT OF AUSTRALIA

DEMARCO & DEMARCO [2016] FamCA 270

FAMILY LAW – COSTS – Where final parenting orders were made by consent – Where the mother makes an application for costs against the father – Where the father seeks that the application be dismissed – Consideration of section 117(2A) of the Family Law Act 1975 (Cth) – Where the Court finds the circumstances do not justify a costs order being made in favour of the mother – Application dismissed.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Demarco

RESPONDENT: Mr Demarco

FILE NUMBER: SYC 174 of 2014

DATE DELIVERED: 27 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: Dealt with by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: M&K Lawyers Group Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Breeze

SOLICITOR FOR THE RESPONDENT: VL Macri Lawyers

Orders

1. That the mother’s Application in a Case filed on 5 August 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Demarco & Demarco has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 174  of 2014

Ms Demarco

Applicant

And

Mr Demarco

Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 29 July 2015 I made final parenting orders, by consent, in relation to the parties’ two children:

   ·C born in 2000; and

   ·M born in 2003.

   The children were independently represented in the proceedings and the Court had the assistance of two reports by a single expert, Dr A.

2. The final orders of 29 July 2015 provided as follows:

   THE COURT ORDERS:

   1.That all prior parenting orders and undertakings be discharged.

   2.That the children [C] born … 2000, and [M] born … 2003, hereinafter referred to as “the children”, live with the mother.

   3.That the Mother have sole parental responsibility for the children.

   4.That the Mother shall facilitate the children, or either child, communicating with or spending time with the Father as agreed if the children, or either of them, express a wish to communicate with or spend time with the Father.

   5.That the Mother shall provide the children with the Father’s address, telephone number and e-mail address, and shall update those details from time to time within 24 hours of any change of details provided by the Father to the Mother.

6.That the children attend upon therapy with [Mr B] at such times and frequency as directed by [Mr B], which may involve the father or the mother as determined by [Mr B], and in this regard :

a.the Mother forthwith and no later than 48 hours after the time of these Orders sign all documents and do all things necessary to engage the children administratively with the therapy with [Mr B];

b.the Mother or her nominee shall ensure that the children attend all appointments as requested by [Mr B];

c.the Father shall be at liberty to contact [Mr B] to ascertain whether the children have attended all appointments requested by [Mr B], and [Mr B’s] view on the benefit or otherwise of ongoing counselling for the children, and the children’s views;

d.the Mother shall be at liberty to contact [Mr B] to ascertain [Mr B’s] view on the benefit or otherwise of ongoing counselling for the children, and the children’s views;

e.the Father shall make all arrangements necessary with [Mr B] to meet the costs of counselling for any session involving the children (or either child), or himself.

f.the Mother shall make all arrangements necessary with [Mr B] and the father shall meet the costs of any session she is requested to attend alone.

7.That the Mother forthwith do all things necessary to attend upon the general practitioner for the children to obtain a mental health referral under the Medicare Mental Health Scheme so that the Father may obtain a rebate for the counselling sessions, and so that the utility of the counselling for the children is reviewed by [Mr B] and the general practitioner as required by Medicare.

8.That the parties and the Independent Children’s Lawyer provide to [Mr B] the following documents:

a.Copy of the Magellan Report dated 3 March 2014

b.Copy of Affidavits of [Ms Demarco] filed 5 June 2015 and [Mr Demarco] filed 29 July 2015

c.Copy of the Final Orders made 3 April 2009

d.Copy of [Dr A’s] Reports

e.Copy of these Orders

and that the father be responsible for the costs associated with [Mr B] reviewing the documents referred to at Order 8 above as and when required by [Mr B].

9.That in the event that the Father fails to pay the costs of [Mr B] as provided for in Order 8 then the Mother shall not be required to confirm any appointment for the children, or either of them, until such time as the Father attends to payment of [Mr B’s] fees.

10.That in the event that the Father fails to pay the costs of [Mr B] as provided for in Order 6(e) above, the Mother shall not be required to confirm any further appointment/s for the children, or either of them, until such time as the Father attends to payment of [Mr B’s] fees.

The Court notes that

i.The purpose of the therapy with [Mr B] is to provide for the children a neutral space where the children can consider their views about the father, their current living arrangements, and their past and current parenting experiences; and

ii.If, upon assessing the children, [Mr B] is of the view that the children, or either of them, do not require an outlet to consider their views about the Father, their current living arrangements, and their past and current parenting experiences, [Mr B] shall communicate that to both parents and no further counselling shall occur.

11.That the parents do all things and sign all documents necessary to renew the children’s passports no less than 6 months prior to the expiration of the children’s passports at the cost of the Mother and for the purpose of this Order the Father shall execute and return to the Mother within 14 days of receipt by him of a request to do so by the Mother, a properly completed Passport Renewal Application for the children, or either of them.

12.That the Mother shall hold the children’s passports.

13.That the Mother be at liberty to travel overseas with the children upon giving the Father no less than 21 days prior written notice of her intention to travel overseas with the children and for the purpose of this Order the Mother provide to the Father copies of return travel documents for the children no less than 3 days prior to the children’s departure from Australia.

14.That in the event either party fails, refuses or neglects to execute any deed or instrument to give effect to these Orders, that a Registrar or a Deputy Registrar of the Family Court of Australia at Sydney be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute the deed or instrument in the name of the Mother or the Father and to do all acts and things necessary to give validity to the operation of the deed or instrument at the cost of the non-compliant party.

15.That the Mother be restrained from taking the children, or either of them, to any counsellor other than [Mr B], except on any referral by the children’s school or [Mr B].

16.That the Mother authorise any school the children may attend to provide to the Father copies of school reports, school photograph order forms, and any information usually provided to parents.

17.That the Mother advise the Father of any treating doctor for the children, and authorise any treating doctor to provide to the Father any information about the children, or either of them, in relation to their health.

18.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

19.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

1. By an Application in a Case filed on 5 August 2015 the applicant mother, Ms Demarco, sought these orders:

   1.That the Respondent Father pay the Applicant Mother’s costs of the proceedings in the sum of $28,426.

   2.That in the alternative to Order 1, the Respondent Father pay the Applicant Mother’s costs of the proceedings as agreed or as assessed for the following periods:

14 March 2014 – 22 April 2014	$2,226 + GST
28 January 2015 – 30 April 2015	$668 + GST
20 February 2015 – 6 March 2015	$1,564 + GST
27 March 2015	$184 + GST
8 April 2015 – 10 June 2015	$7,230 + GST
10 June 2015 to 29 July 2015	$8,988 + GST
29 July 2015 (Counsel)	$4,250 + GST
29 July 2015 Hearing fee	$805 (inc GST)
TOTAL	$28,426 (inc GST)

3.That in the alternative to Order 2, the Respondent Father pay the Applicant Mother’s costs as agreed or as assessed.

1. By a Response to an Application in a Case filed on 14 September 2015 the father, Mr Demarco sought an order:  “That the application for costs made by the mother be dismissed.”

2. By a letter to my Associate dated 11 September 2015 the solicitors for the mother purported to increase the quantum of costs which she sought from the father to $29,086.  The additional sum of $660 was said to be one-half of the fees of the single expert Dr A.  No application was made by the mother at any stage for leave to amend her Application in a Case and I cannot determine whether the father and/or his solicitors were ever informed of this purported change in her position.

3. On 29 July 2015 I made the following directions, by consent, in relation to the mother’s application for costs:

   A.The wife is to file and serve an Application for costs together with an affidavit and written submissions in support thereof within seven days.

   B.The husband is to file and serve a Response to that Application together with an affidavit and written submissions within a further period of 14 days.

   C.The wife is to file and serve any submission in reply within a further period of seven days.

4. The mother filed and served her material in accordance with these directions.  The father’s Response and affidavit were filed and served on approximately 14 September 2015, which was some four weeks outside the prescribed time.

5. On 30 September 2015 the solicitors for the mother filed written submissions in reply to those of the father, under cover of an email of the same date.  Inter alia, the mother’s written submissions stated:  “The mother’s primary submission is that the Court should have no regard to the submissions filed by the Father in opposing the Mother’s Costs Application.”

6. There was thus some uncertainty as to whether I should take into account the evidence and written submissions of the father in my determination of the costs application of the mother.  The solicitors for the mother ultimately indicated, by way of email to my Associate dated 20 January 2016, that they elected that I determine her application for costs having regard to the evidence and submissions filed by each of the parties.

Background

1. The parties married and commenced cohabitation in 1990.  They separated in March 2007, at which time the children remained in the care of the mother.

2. Apparently the parties engaged in contested parenting proceedings between 2007 and 2009, with a judgment being delivered in April 2009.  Final orders were made to the effect that the children live with the mother and spend alternate weekends, each other Wednesday night and holidays periods with the father.  It appears that these orders were substantially complied with by the parties until December 2013.

3. On 14 January 2014 the mother filed an Initiating Application, following allegations that M had been sexually abused by a young teenaged paternal cousin.  These proceedings were ultimately listed for trial in July 2015.

4. The mother is self-employed and re-partnered with Mr D in 2008.  They began to live together in 2010 and married in 2013.

5. The husband is employed by a construction company.  He re-partnered approximately five years ago but has continued to live in the home of his parents.

6. On 9 December 2014 orders were made, by consent, that the children spend time with the father on two occasions in December 2014 and January 2015.  The children refused to spend time with the father on both of these occasions.  Also on 9 December 2014 the parties were directed to file a Minute of orders which they sought, on a final basis, by 28 January 2015.

7. The mother filed a Minute in January 2015, by which she sought the following orders:

   1.That the Mother have sole parental responsibility for the children [C] (“[C]”) born … 2000 and [M] (“[M]”) born … 2003 (collectively “the children”).

   2.That the Mother keep the Father informed of the status of the children’s health and:

   2.1provide the Father with no less than 14 days notice of any major decision she intends to make about the health of either child; and

   2.2provide the Father with an opportunity to provide his input into any decision the Mother intends to make in her exercise of parental responsibility.

   3.That the Mother provide to the Father copies of the children’s school reports within 14 days of receipt of the children’s school reports.

   4.That the children live with the Mother.

   5.That the Mother do all things necessary to enable the children, or either child, to communicate with or spend time with the Father if the children, or either of them, express a wish to communicate with or spend time with the Father.

   6.That the Mother do all things and sign all documents necessary for each child to attend upon his school counsellor on at least 2 occasions per year for the purpose of the child discussing his wishes about spending time with and/or communicating with the Father and for the purpose of this Order:

   6.1The Mother shall do all things and sign all documents necessary to authorise the children’s school counsellors to provide the Father with feedback from the children’s counselling; and

   6.2In the event that the children or either child expresses a wish to spend time with or communicate with the Father that the Mother and the Father attend upon an accredited Family Dispute resolution practitioner for mediation.

   7.That the parents do all things and sign all documents necessary to renew the children’s passports no less than 6 months prior to the expiration of the children’s passports at the cost of the Mother.

   8.That the Mother hold the children’s passports.

   9.That the Mother be at liberty to travel overseas with the children upon giving the Father no less than 21 days notice of her intention to travel overseas with the children and for the purpose of this Order the Mother provide to the Father copies of return travel documents for the children no less than 3 days prior to the children’s departure from Australia.

   10.That in the event either party fails, refuses or neglects to execute any deed or instrument to give effect to these Orders, that a Registrar or a Deputy Registrar of the Family Court of Australia at Sydney be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute the deed or instrument in the name of the Mother or the Father and to do all acts and things necessary to give validity to the operation of the deed or instrument at the cost of the non-compliant party.

   11.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

   12.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

8. The father failed to comply with the order that he file a Minute of final orders sought by 28 January 2015.  He maintained that it was “impossible” for him to “formulate what orders [he] wanted for the children” in circumstances where they had refused to spend time with him in December 2014 and January 2015.

9. On 17 February 2015 the father filed an Application in a Case by which he sought the following orders:

   1.That the children [C] and [M] attend upon therapy with [Mr B] at such times and frequency as directed by [Mr B] and either jointly or separately with the father for the express purpose of repairing the children’s relationship with the father and in this regard:

   a.the mother forthwith and no later than 48 hours after the time of these Orders sign all documents and do all things necessary to engage the children administratively with the therapy with [Mr B];

   b.the mother or her nominee must ensure that the children attend all appointments as set by [Mr B];

   c.the father be at liberty to contact [Mr B] to ascertain whether the children have attended all appointments set by [Mr B];

   d.the independent children’s lawyer (ICL) be at liberty to communicate with [Mr B].

   2.That the therapy referred to in Order 1 above be non-reportable therapy.

   3.That the matter be adjourned for 6 months to allow the therapy in Order 1 to take place.

   4.That the mother forthwith do all things necessary to attend upon the general practitioner for the children to obtain a mental health referral under the Medicare Mental Health Scheme for the purposes of the father obtaining a rebate for the counselling sessions.

   5.That the father forthwith attend upon his general practitioner to obtain a mental health referral under the Medicare Mental Health scheme for the purposes of the father obtaining a rebate for the counselling sessions.

   6.That the children spend time with the father in accordance with the Final Orders at the direction of [Mr B].

   7.That the parties and the Independent Children’s Lawyer provide to the Counsellor the following documents:

   a.Copy of the Magellan Report dated 3 March 2014

   b.Copy of all affidavit material filed in these proceedings

   c.Copy of the Final Orders made 3 April 2009

   d.[Dr A’s] Report

   e.Copy of these Orders.

10. The father withdrew this Application in a Case after he received the second report of Dr A dated 16 February 2015.  Dr A specifically recommended against orders for therapy on an interim basis.

11. On 27 March 2015 the father filed a Minute of orders which he sought on a final basis.  This document read as follows:

    1.That all existing parenting orders in respect of the subject children [C] born … 2000 and [M] born … 2003 be and are hereby discharged.

    2.That the parents have equal shared parental responsibility for the children.

    3.That the children live with the mother.

    4.That the children spend time with the father as follows:

    a.During school terms:

    i.each alternate weekend from the conclusion of school on Friday, or 3 pm in the event that it a non-school day until before school or 8 am on Monday;

    iievery Wednesday afternoon from after school or 3 pm in the event that it a non-school day until before school or 8 am on Thursday.

    b.For the first half of all school holiday periods in even numbered years and for the second half of all school holiday periods in odd numbered years, including the Christmas school holiday period.

    5.For the purposes of Christmas:

    a.The children will spend time with the father from 3 pm Christmas Eve to 3 pm Christmas Day in 2015 and every odd numbered year thereafter and from 3 pm Christmas Day to 3 pm Boxing Day in 2016 and every even numbered year thereafter; and

    b.The children will spend time with the mother from 3 pm Christmas Eve to 3 pm Christmas Day in 2016 and every even numbered year thereafter and from 3 pm Christmas Day to 3 pm Boxing Day in 2015 and every odd numbered year thereafter.

    6.For the purposes of special occasions:

    a.the parent who does not otherwise have the care of the children on each of the children’s respective birthdays shall spend time with the children on each child’s birthday from after school until 6 pm if on a school day and from 9 am until 2 pm if on a non-school day.

    b.in the event that the children are not otherwise in the care of the father on his birthday that the children spend time with the father on his birthday from 9 am until 8 pm;

    c.in the event that the children are not otherwise in the care of the mother on her birthday that the children spend time with the mother on her birthday from 9 am until 8 pm;

    d.in the event that the children are not otherwise in the care of the father on Father’s Day that the children spend time with the father on Father’s Day from 9 am until 8 pm;

    e.in the event that the children are not otherwise in the care of the mother on Mother’s Day that the children spend time with the mother on Mother’s Day from 9 am until 8 pm.

    7.That the children’s time with the father as provided for in orders 4, 5 and 6 herein be subject to Orders 13 and 14 below.

    8.For the purposes of changeover the father shall collect the children from school or the mother’s residence as the case may be at the commencement of the children’s time with him and the mother shall collect the children from school or the father’s residence as the case may be at the culmination of the children’s time with the father.

    9.That the children are at liberty to communicate at will with either parent and any member of either parent’s family by any electronic means available to the children and both parties do all things necessary to facilitate such communication.

    10.That the parties be at liberty to communicate at will with the children by any electronic means available and both parties do all things necessary to facilitate such communication.

    11.That both parties be at liberty to attend any school or extra curricular function that parents are eligible to attend including but not limited to any school function, sporting function or other function which the children attend.

    12.That the mother sign any document and give any authorization necessary to ensure that the children’s schools and any extra  curricular organization in which the children are enrolled are informed of the status of the father as the children’s father and that the father be at liberty to receive copies of any and all documentation, report or other information generated by that school or organization in respect of either of the children and the father be at liberty to produce these Orders to any such organization.

    Therapeutic Counselling

    13.That the children, for the express purpose of facilitating the children’s time with the father as provided for in these Orders, attend upon therapeutic counselling with [Mr B] at such times and frequency as directed by [Mr B] and in the company of the father as directed by [Mr B] and in this regard:

    a.the mother forthwith and no later than 48 hours after the time of these Orders sign all documents and do all things necessary to engage the children administratively with the therapy with [Mr B] including but not limited to attending upon the children’s general practitioner from time to time as required for the purposes of obtaining a continuing mental health referral under the Medicare Mental Health Scheme for the purposes of the father obtaining a rebate for the therapeutic counselling sessions and the mother to continue to so attend to ensure that the children’s counselling sessions with [Mr B] attracts the maximum Medicare rebate available;

    b.the mother ensure that the children attend all appointments directed by [Mr B];

    c.the father be at liberty to contact [Mr B] to ascertain whether the children have attended all appointments directed by [Mr B];

    d.the independent children’s lawyer (ICL) be at liberty to communicate with [Mr B] for the purposes of discussing these orders or otherwise as the Court orders;

    e.the mother and the father share equally the costs after rebate of the counselling sessions.

    14.That the children’s time with the father in accordance with Orders 4, 5 and 6 herein commence at the direction of [Mr B] and at such increments as is directed by Mr B.

    15.That the parties and the Independent Children’s Lawyer provide to [Mr B] copies of:

    a.Magellan Report dated 3 March 2014

    b.All affidavit material filed in these proceedings

    c.Copy of the Judgement and Final Orders made 3 April 2009

    d.[Dr A’s] Reports

    e.Copy of this Judgment and Orders

1. At a case management event before a Registrar on 6 July 2015 the father’s counsel advised that he would press only for orders for counselling as set out in his Application in a Case filed on 17 February 2015.  The father’s counsel indicated further that he would file no evidence and, subject to his application for orders for counselling, he would permit the mother’s application to proceed on an undefended basis.

2. On 10 July 2015 the father submitted a new Minute, by which he sought the following final orders:

   1.That the children [C] and [M] attend upon therapy with [Mr B] at such times and frequency as directed by [Mr B] and either jointly or separately with the father for the express purpose of repairing the children’s relationship with the father and in this regard:

   a.the mother forthwith and no later than 48 hours after the time of these Orders sign all documents and do all things necessary to engage the children administratively with the therapy with [Mr B];

   b.the mother or her nominee must ensure that the children attend all appointments as set by [Mr B];

   c.the father be at liberty to contact [Mr B] to ascertain whether the children have attended all appointments set by [Mr B];

   d.the independent children’s lawyer (ICL) be at liberty to communicate with [Mr B].

   2.That the mother forthwith do all things necessary to attend upon the general practitioner for the children to obtain a mental health referral under the Medicare Mental Health Scheme for the purposes of the father obtaining a rebate for the counselling sessions.

   3.That the children spend time with the father in accordance with the Final Orders made 3 April 2009 such time to commence in such increments as is recommended by [Mr B].

   4.That the parties and the Independent Children’s Lawyer provide to the [Mr B] the following documents:

   a.Copy of the Magellan Report dated 3 March 2014

   b.Copy of all affidavit material filed in these proceedings

   c.Copy of the Final Orders made 3 April 2009

   d.[Dr A’s] Reports

   e.Copy of these Orders.

Approach to these proceedings

1. The present application is to be determined in accordance with section 117 of the Family Law Act 1975 (Cth). Relevantly, sections 117(1), 117(2) and 117(2A) provide as follows:

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (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, inspection, 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.

Consideration

Section 117(2A)(a)

1. The mother’s unchallenged evidence was that she has incurred approximately $84,500 in legal costs and disbursements.  The father deposed that, as at 14 September 2015, he had an outstanding debt of about $34,000 to his lawyers.  He did not indicate what amount, if any, he had already paid for legal representation.

2. The mother deposed that her taxable income in the 2014 year was $60,131 and that of her husband $75,559.  The father pays child support of approximately $6,000 per annum.

3. The father deposed that he receives a net weekly income of $1,106 from his employment and a gross sum of $72 “from a trust”.  He gave scant evidence as to his weekly expenditure.

Section 117(2A)(b)

1. Neither party was in receipt of a grant of Legal Aid.

Section 117(2A)(c)

1. The mother contended that the father’s conduct in relation to the proceedings had the effect of increasing her costs.  In particular, she complained that he failed to comply with directions and changed his position on more than one occasion.

2. It is true that the father failed to comply with various directions and that he submitted different Minutes of Orders Sought between February 2015 and July 2015.  In my view, however, consideration should be given to the very difficult situation in which the father found himself at these times.  The children were refusing to spend time or communicate with him.  The decision which he ultimately made, effectively, was to walk away from his sons, being left only with the hope that therapy may repair their relationship at some future time.  In my view, such a decision would be a very difficult and painful step for a parent.

3. Further, I am conscious of the complex dynamics within this separated family.  Dr A opined inter alia:

   85.2It was notable in the narrative of both children, seen alone and with each parent, that at the front of their mind and heart were the issues of relationship with each parent and the tensions and partisan complexities of the same, not the issues of sexual abuse.

   85.3It is my impression that the relational circumstances existing over recent years prior to the alleged incident of sexual intrusion was one of ongoing tension, with the children playing a central role in containing and buffering this tension so as to maintain an uneasy peace.  This has been distressing and developmentally harmful to the children, and is in my view just as important to address as are the allegations of abuse.

4. I am also cognisant of Dr A’s assessment of aspects of the father’s personality.  He opined:

   311But, in my view, the father shows evidence of significant personality immaturity.  This is not so much in terms of him demonstrating the traits of a particular personality disorder, but more that the father lacks empathic attunement and reflective functioning, and thus can mean well, but can be experienced by the other as literal, insensitive, obsessional, perseverative, and controlling, in his relating to them.

   312I found the father’s narrative to be quite generalised, impressionistic and lacking in context and defining detail.  When I sought examples, the father struggled to provide them, or they did not match the narrative.  My impression was that my difficulties in effective communication with the father arose from his on the one hand earnest altruistic intention, and on the other hand, his lack of insight secondary to a lack of empathic attunement and reflective functioning.

   (Original emphasis)

5. Against this background, the father made the very difficult decision to abandon his application for orders that the children spend time and communicate with him.  He elected to pursue only his application for orders that the children engage in therapy with Mr B.

6. The father’s position was indicated clearly to the mother, the ICL and the Court by his counsel before a Registrar on 6 July 2015 and confirmed by the amended Minute filed on 10 July 2015.  The ICL circulated a Minute of Orders which she sought on 28 July 2015 and this document became the consent orders of 29 July 2015.

7. Essentially, then, the only outstanding issue was whether the children should engage in therapy with Mr B or consult with their school counsellor.  The ICL supported the father’s proposal for therapy with Mr B.

8. The father had proposed orders which entailed therapy with Mr B since his Application in a Case filed on 17 February 2015.  The mother adhered to her position that the children should consult only with their school counsellor until the first day of the trial.  She maintained this position despite Dr A’s opinion that:

   8.4.1The therapist should have expertise in working in the context of Family Law rather than just making use of the school counsellor, and I feel that the therapist nominated by the father, [Mr B], would be an excellent candidate...

   The mother had been aware of Dr A’s strong endorsement of Mr B as therapist since the release of his report dated 16 February 2015.

Section 117(2A)(d)

1. No relevant considerations arise pursuant to this sub-section.

Section 117(2A)(e)

1. Neither party was wholly unsuccessful in the proceedings.

Section 117(2A)(f)

1. The only offers of settlement which were ever put by the mother were suggestions to the father that he consent to the orders which she proposed in their entirety (Annexures F and H to the mother’s affidavit).  I accept the submission on behalf of the father to the effect that the orders to which the mother ultimately agreed were at variance with her proposal in two significant respects.  Firstly the final consent orders appointed Mr B to conduct therapy with the children, rather than imposing a requirement that they consult with a school counsellor at least twice per year.  Mr B is a well-recognised expert with significant experience in working with separated parents and children in situations of high conflict.  As noted above, Mr B was strongly recommended for a therapeutic role by Dr A in February 2015.  The ICL supported the father’s proposal for therapy with Mr B.

2. The second difference was that the mother’s Minute contained no proposal for any involvement of the father with the children’s attendances upon the school counsellor.  In contrast, the final consent orders made provision for Mr B to involve the father in the therapeutic process in the event that he saw fit to do so.  The final consent orders provided further that the father may communicate with Mr B “to ascertain whether the children have attended all appointments requested by Mr B, and Mr B’s view on the benefit or otherwise of ongoing counselling for the children, and the children’s views.”

Section 117(2A)(g)

1. I do not accept the submission of the mother that the father adopted a “brash” approach to these proceedings and that he had an “inability to properly compromise the litigation when faced with such overwhelming evidence”.  The “overwhelming evidence” was said to be the reports of Dr A.

2. As indicated above, the father ultimately “compromised the litigation” and elected to press only his application for orders that the children engage in therapy with Mr B.  As I have stated, I consider that the father was in a painful situation and was called upon to make a very difficult decision.

Conclusion

1. For all of these reasons, and in the exercise of my discretion, I am not satisfied that there are circumstances which justify the making of an order for costs in favour of the mother.  Accordingly, I will dismiss her Application in a Case filed on 5 August 2015.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 27 April 2016.

Associate: 

Date:  27 April 2016