Dent and Dent

[2017] FCCA 1255

FEDERAL CIRCUIT COURT OF AUSTRALIA

DENT & DENT [2017] FCCA 1255

Catchwords:
FAMILY LAW – Parenting – failure of party to appear on multiple occasions – order for mental health assessment – non-compliance with orders to file documents – failure to prosecute application – family violence causing psychological harm to the child – costs order.

Legislation:

Family Law Act 1975 (Cth), Pt VII

Family Law Act 1975 (Cth), Pt XV

Family Court Rules 2004 (Cth), Part 18.2

Cases cited:

Cross & Beaumont [2008] FamCAFC 68

Hawkins & Roe [2012] FamCAFC 77

Penfold v Penfold (1980) HCA 4

Applicant: MR DENT

Respondent: MS DENT

File Number: NCC 1606 of 2011

Judgment of: Judge Middleton

Hearing date: 2 May 2017

Date of Last Submission: 2 May 2017

Delivered at: Newcastle

Delivered on: 2 May 2017

REPRESENTATION

Counsel for the Applicant: Mr Weightman

Solicitors for the Applicant: Carroll & O'Dea Lawyers

Counsel for the Respondent: N/A

Solicitors for the Respondent: N/A

THE COURT ORDERS THAT:

1. All previous orders are discharged.

2. The father has sole parental responsibility for the X born (omitted) 2004 (“X”).

3. X live with the father.

4. X spend time with the mother as requested by X.

5. X communicate with the mother as requested by X.

6. Prior to X spending any time with the mother, the mother is to contact her General Practitioner for the purpose of arranging a mental health assessment and that she do all things reasonably necessary to cause her General Practitioner to provide a letter to her addressing the concerns, namely the mother’s mental health and insight into the impact of her behaviour on others including on her children.

7. Prior to X spending any time with the mother, the mother provide to the father a copy of the letter obtained by her from her General Practitioner as set out in order 6 above.

8. Prior to X spending any time with the mother, the mother engage in a program as recommended by the Manager of Child Dispute Services at the Family Court Registry in Newcastle to assist her to understand and develop skills and strategies to appropriately parent adolescent children.

9. Prior to X spending any time with the mother, the mother provide to the father evidence that she has engaged in a program as set out in order 8 above and has completed that program and any subsequent programs recommended to her by the facility with which she is engaged.

10. In the event X requests to spend time with the mother and the mother has complied with Orders 6, 7, 8 and 9 of these Orders, changeover shall occur as agreed between the parents and if no agreement, the Mother will collect X at the commencement of time from the father’s place of residence and will deliver X to the father’s place of residence at the conclusion of time.

11. The mother be restrained from attending and/or contacting any school X attends.

12. Within 7 days of receiving each of X’s school reports, the father provide to the mother a copy of the school reports.

13. X be permitted to travel internationally.

14. In the event X spends time with the mother, the mother is restrained from allowing X to spend unsupervised time with Mr S, the maternal grandfather.

15. The mother be at liberty to send to X birthday cards and/or presents, Christmas cards and/or presents and the father will immediately upon receipt provide to X any such items forwarded by the mother.

16. The father will notify the mother immediately upon the happening of a serious accident or illness experienced by X and as to the treatment being rendered.

17. Each parent is hereby restrained from denigrating the other or any partner of the other in the presence of X and in any way using obscene or inappropriate language in the presence of X.

18. Each parent keep the other informed at all times of his or her then current address and telephone number and keep current a telephone service available for the purposes associated with these orders.

19. All outstanding applications are dismissed and the proceedings are removed from the active pending cases list.

20. The Independent Children’s Lawyer is discharged.

21. No order as to costs for the Independent Children’s Lawyer.

22. The respondent Ms Dent pay to the applicant Mr Dent, the sum of $8955.75.

23. The respondent has 60 days to pay such sum.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1606 of 2011

MR DENT

Applicant

And

MS DENT

Respondent

REASONS FOR JUDGMENT

Application for review of registrar’s decision

1. Ms Dent has filed an Application in a Case on 28 April 2017.  In that application she seeks an order of a review of the Registrar’s decision to refuse filing of a Contravention Application on 27 April 2017.  I have power to review that decision under Part 18.2 of the Family Court Rules. In particular, rules 18.07, 18.08 and 18.10 apply. 

2. The Contravention Application was in exactly the same terms as the Contravention Application that was filed by the Respondent on 3 November 2016 and that I dismissed on 10 April 2017 for want of prosecution on that occasion. Like on many other occasions, the Respondent was not present on that date.

3. In determining the review, I may receive evidence by way of Affidavit or any further evidence or any transcripts. Ms Dent has filed an Affidavit in support of her review.  The evidence that she seeks to rely upon is contained within that Affidavit. It details that she lodged the initial Application for Contravention on 3 November 2016, that I dismissed it on 10 April 2017, that she attempted to lodge a further Contravention on 27 April 2017 and that the Registrar rejected it. In the Affidavit Ms Dent also provides a copy of the letter. 

4. The Affidavit gives evidence that it is her intention to appeal the decision of the contravening of the orders by Mr Dent “due to unresolved time/phone contact without our child”. That evidence is not relevant to the application for review. She says she is seeking a review of the decision of the Registrar due to “no contact still on our child, X.”

5. The court notes that I ordered a suspension of the previous orders of 2012 with respect to physical time with X on 4 November 2016, and Ms Dent says at paragraph 5:

   “I would like to address the court over the cost applications if this is the case due to orders made on 10 April 2017.  The orders are completely unclear on point 5.”

6. That is not relevant to the review. The Registrar’s decision came to Ms Dent by way of a letter that she annexed, and in that letter the reasons for rejecting the filing of the further Contravention Application were given as follows:

   “The alleged contraventions at Part D, Items 6 & 7 are the same as those contained in the Application - Contravention filed by the Applicant on 3 November 2017. Orders were made by Judge Middleton on 10 April 2017 dismissing the application.”

7. In all of the circumstances, having reviewed the Registrar’s decision, I affirm or uphold the Registrar’s decision not to allow the Contravention Application to be filed.

Service of documents

1. Exhibit 1 in these proceedings is an Affidavit of Mr P.  That Affidavit informs me that service was attempted by personally serving the Respondent at (omitted).  I am told that the access gate of the property was unlocked. There was a knock on the door a few times. There was no response. As a result, the process server, Mr P, placed the documents: Amended Initiating Application, an Affidavit of Mr Dent sworn 27 April 2017, a further Affidavit of Mr Dent sworn 27 April 2017, and a letter addressed to Ms Dent from Carroll O’Dea Lawyers dated 28 April 2017.

2. I am satisfied that the Respondent lives at (omitted). I am so satisfied because she filed an Application in a Case on 28 April 2017 and an Affidavit in support of that Application in a Case wherein she gave evidence that she lives at (omitted). In those circumstances, I am satisfied that the documents have been brought to the attention of Ms Dent.

Short history of events

1. This matter came before me initially by way of an Initiating Application filed by the father. The matter first came before the court on 27 September 2016. On that occasion, I ordered the mother to file a Response, Affidavit and Notice of Risk. She was present in person on that day.

2. The matter came back before me on 4 November 2016. On that occasion, due to an incident that had occurred on 31 July 2016, I suspended the orders in relation to X spending time with her mother.

3. Again, the mother was in person and present at court. I made an order that the mother obtain a mental health assessment as I had grave concerns about the mother’s ability to cope with her own wellbeing and that of X, and I ordered once again for the mother to file her Response, Affidavit and Notice of Risk.

4. The matter comes before me today.  On 10 April 2017 the Respondent did not appear.  On that occasion I made an order that the Contravention Application filed by the Respondent be dismissed for want of prosecution, and I adjourned the matter to today for an undefended hearing if the mother failed to appear and failed to provide her material. 

5. The mother was here earlier today, made herself known to my Associate, and, for reasons best known to her, has left the court once again. That is consistent with the somewhat irrational behaviour that I have experienced with the mother throughout the course of these proceedings.

6. I am satisfied that the mother was aware of today’s proceedings.  I am certainly satisfied that the mother was aware that the matter would proceed by way of undefended hearing, and I say that because in her Application for Review the mother specifically refers to the orders that I made on 10 April 2017.  In those circumstances, I am satisfied that the matter should proceed by way of undefended hearing.

The evidence

1. The father relies upon his Amended Initiating Application, his Affidavit filed on 28 April 2017, the Child Inclusive Memorandum of 14 October 2016 (Exhibit 2), and the Family Report dated 2 March 2017 (Exhibit 3).

2. There is no material from the mother relevant to these final proceedings.

3. The parties separated on 17 June 2010.  On 20 April 2012, final orders were made by consent which provided for all of the children of the relationship to live with the father and spend time with the mother. 

4. On 31 July 2016 X spent some time with her mother. On that occasion the mother, for reasons best known to her, decided that it was an appropriate way to discipline X by keeping her in a car for four hours.

5. The child was distressed and upset and became increasingly distressed and upset. The mother nevertheless decided it was a good idea to keep X in that car.

6. The mother also stole X’s watch on that day. When X returned home, she complained of those events to her father and in particular that the watch had been stolen.

7. The mother has subsequently returned the watch by mail, and thereafter demanded that X spend time with her once again.

8. Indeed the contraventions filed by the mother in the course of these proceedings demand that the orders of 2012 be reinstated. 

9. This shows an incredible lack of insight on behalf of the mother and again confirms my concerns that the mother may be suffering some form of psychological impairment which affects her capacity to meet the needs of the child.

10. The father, in his Affidavit, satisfies me that he has been proactive, careful, considered, responsive, and at all times appropriate in meeting the needs of X. 

11. The family report writer, Mr D, provided a report.  There were obvious limitations in the report and he sets those out, namely that the mother was not interviewed because she failed to attend and that he was unaware of the orders that she sought because she had not filed a Response or Affidavit.

12. There is no assessment of the mother’s current mental health because the mother failed to comply with my order of 4 November 2016 and obtain a mental health assessment. 

13. Mr D sets out that the paternal grandfather was not interviewed, but also states that that limitation is likely to be very minor.

Application of the law

Primary considerations

1. I must follow the legislative pathway to the extent that the matters are relevant. 

2. Section 60CC(2)(a) provides that children generally benefit from having a meaningful relationship with both parents.  On the evidence of the father and due to the lack of evidence of the mother, I could not be satisfied that X could have a meaningful relationship with her mother. 

3. Further to that, the views expressed by X indicate that X has a very fractured relationship with her mother and that she is fearful of her.  In those circumstances, X would not benefit from a relationship with her mother because it is not meaningful at this time.

4. Section 60CC(2)(b) provides that one of the primary considerations is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

5. Clearly, the incident on 31 July 2016 amounts to family violence as defined under the Act.  In the absence of any explanation from the mother, of any mental health assessment, and of any interview with the family consultant, I am of a view that the mother’s behaviour on that occasion was irrational, dysfunctional, did not meet the child’s needs, caused psychological harm as revealed in the family report, caused fear to the child and had a real potential of causing physical harm, having been locked in a hot car for four hours.

6. In those circumstances, I am certainly satisfied that there is a need to protect X from physical or psychological harm from being subject to at least further family violence and potentially further neglect if she were to spend time with her mother. 

Additional considerations

1. There are additional considerations that are relevant.

2. The wishes of the child is a very relevant consideration, and I take on board what counsel for the applicant tells me in relation to X’s young age.  However having read what she told the family consultant and, more importantly, the way in which she told the family consultant her views, I am satisfied that she is a mature young lady who is able to articulate appropriately real fears that she experienced and real concerns that she has about spending time with her mother.

3. In particular, the child was asked by the family consultant what she thought might happen in the future between her and the mother in terms of a relationship, and was provided the examples of when she graduates from university or gets married.[1]

   [1] Family Report of Mr D dated 2 March 2017, page 8.

4. X thoughtfully hesitated and said she was not sure, but subsequently pragmatically advised the family consultant that she would want her mother involved but not if her mother was angry, and she also stated that she would have to decide that in time. 

5. They are very thoughtful words for a young 12 year old who has experienced a considerable moment in her life with her mother.  Those views should be given considerable weight and I will give them such weight.

6. I am satisfied that X has a loving, secure, appropriate relationship with her father and other paternal family members. 

7. I am satisfied that the father has the capacity to provide for the needs of the child, including her emotional and intellectual needs, and has taken every opportunity to do all things that he possibly can to meet the child’s needs in a very difficult set of circumstances that has been going on now for almost seven years. 

8. I am not satisfied that the respondent has taken the necessary steps to involve herself appropriately in making decisions about X, or participating in life events with X, or spending time with X in an appropriate way.

9. On the evidence before me I am satisfied that the father has fulfilled his obligation to maintain the child. 

10. The orders sought by the applicant in real terms will not bring about very much of a change in X’s life.

11. If I make the orders that he seeks, she will effectively remain living with her father, and she has done so for many years.  She will still be able to communicate with her mother should she decides that that is appropriate, and I note that the father is engaging X with school counsellors and the like to assist her to overcome that terrible experience.

12. I am satisfied on the evidence before me and on the behaviour of the mother that I have witnessed that she has a very poor attitude to the child and to her responsibilities of parenthood. 

13. Her actions on 31 July 2016 reveal a complete lack of insight, a complete disregard for X as a human being, and a disgraceful approach to parenting. 

14. As I stated, that incident – noting that the mother was angry and yelling at times to X and stole the watch from her against X’s wishes – amounts to family violence, and the orders that the father seeks will prevent family violence from occurring in the presence of X again at the behest of her mother.

Parental responsibility

1. The father seeks an order for sole parental responsibility. 

2. Section 61DA(2) provides the presumption contained within Section 61DA(1) of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in, relevantly, family violence.  Accordingly, the presumption does not apply. 

3. The question remains whether there are other reasons why it would be in the best interests for X to have her parents have equal shared parental responsibility. 

4. With the complete lack of evidence from the mother and having to rely upon the evidence of the father, I am satisfied that the relationship between the mother and father is completely dysfunctional, one in which there is high conflict and very poor communication, and, in those circumstances, an order for equal shared parental responsibility is not in the best interests of X. Accordingly I will make an order for sole parental responsibility.

5. When I am considering making an order for sole parental responsibility, the provisions of Section 65DAA are not triggered.

6. I otherwise must make orders that I deem appropriate and that are in the best interests of the child.  Having regard to all of those matters, I am satisfied it is in the best interests of X to make orders in accordance with Annexure A as contained within the Amended Initiating Application filed on 28 April 2017.

7. The Independent Children’s Lawyer is also discharged and all outstanding applications are dismissed and removed from the Active Pending Cases List.

Costs application

Background

1. This matter comes before me today on the back of an Application Contravention that was filed on 3 November 2016 by the Respondent mother.  That matter first came before me on 27 February 2017.  On that occasion, the Applicant for the Contravention, that is, the Respondent mother, failed to attend.  On that occasion, I adjourned the matter until 10 April. 

2. On 10 April 2017 the Applicant for the Contravention, the Respondent mother, again was not in attendance.  She did not appear.

3. On 27 February 2017, when the matter first came before the court, the mother forwarded to the court a medical certificate which became Exhibit 3 in these proceedings today.  The medical certificate provides:

   “This is to certify that Ms Dent is medically unfit to attend court on 27 February 2017.”

4. The submission by Mr Weightman is that the certificate is highly unsatisfactory, and I tend to agree.  It provides no reason other than “medically unfit” as to why the mother did not attend. 

5. Of course, I can take into account the mother’s failure to attend on previous occasions.  I can take into account the mother’s failure to comply with orders on previous occasions when I consider the adequacy or otherwise of that medical certificate. 

6. As to whether the mother is aware of today’s proceedings or otherwise, the mother has filed an Application for Review of a Registrar’s Decision to disallow the filing of a further Contravention Application.

1. I dealt with that matter earlier this morning, and in dealing with it noted that the mother specifically referred to the orders of 10 April 2017 which deal with this costs application.  I am certainly satisfied that the mother is aware of these proceedings and in particular this costs application, and, once again, she is not in attendance today.

The law

1. Turning to the relevant law, in Hawkins & Roe [2] their Honours set out the relevant law at paragraphs 13, 14 and 15. In that case their Honours said:

   “…it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.”[3]

   [2] [2012] FamCAFC 77.

   [3] [2012] FamCAFC 77, [13].

2. Their Honours went on to say:

   “In proceedings involving children’s or parenting matters, the general rule is not often displaced.”[4]

   [4] [2012] FamCAFC 77, [14].

3. A Contravention Application is a children’s or parenting matter.  Their Honours said:

   “The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.”[5]

   [5] Ibid.

4. It is important, in my view, to emphasise this aspect of those remarks, that is, it is proper that parents are able to put their case in seeking orders which they believe are in the best interests of the children.

5. Relevantly, the mother did not put her case.  She failed to prosecute her case. 

6. Section 117(2A) of the Act sets out the matters which the court is to have regard to when considering what order (if any), should be made, and with respect to the application of the Section, in Penfold v Penfold[6]  the Court said at 315 and 316:

   “Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order.  Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on the applicant for an order for costs.”

   [6] (1980) HCA 4.

Circumstances justifying the making of a costs order

1. Firstly, the mother filed her application and then failed to attend on two separation occasions.  The application was dismissed for want of prosecution.  The mother failed to comply with orders.  The mother has consistently failed to attend in court.

2. Those circumstances of themselves, particularly in light of the fact that the litigation involving this child has taken a considerable part of her life. Some six years of the child’s life has been involved in fights and disputes mainly at the behest of the mother.

3. In those circumstances, I am satisfied that I am justified in making an order for costs, but before I do so I must have regard to the matters set out in Section 117(2A). 

4. Importantly, in Hawkins & Roe[7] the court said:

   “The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court… held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative.”

   [7] [2012] FamCAFC 77 [18].

5. Nowhere in subsection (2A) or elsewhere in Section 117 is there any prescription that more than one factor must be present before an order for costs is made, and, as their Honours pointed out in Hawkins & Roe[8]:

   “As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.”

   [8] Ibid.

6. In respect of Subsection (a) of Section 117(2A) the Full Court said in Hawkins & Roe[9]:

   “In respect of (a), the financial circumstances of the parties, it is as well to recall previous decisions of this Court that a disparity in financial resources between the parties may justify an order for costs in favour of the party with fewer financial resources.”

   [9] [2012] FamCAFC 77 [20].

7. The father has provided some evidence as to both of the parties’ respective financial circumstances.  It is the case that in 2012 the parties entered into orders by consent for the adjustment of property. 

8. Pursuant to those orders, the mother retained the former matrimonial home.  In doing so, she had to pay to the husband the sum of $203,588. 

9. The evidence of the father in these proceedings is that at the time the orders were made the value of the home was approximately $550,000 and that there was then a mortgage of $146,000.

10. Exhibit 1 and 2 of today’s proceedings revealed that the mother still owns that property, and it also reveals in Exhibit 2 that there is a mortgage to a sum of $350,000 or greater. 

11. There is also evidence that the mortgage is in favour of the maternal grandfather, and there is also in evidence that the maternal grandfather sold his home in order to help out the mother at the time of settlement.

12. Adding together the amount due to the husband at $203,508 and the then existing mortgage, the amount of the mortgage back in 2012 would have been $349,580.

13. There is no evidence that that mortgage has been paid out or indeed has been reduced.  What I can do, though, is rely on the evidence that the property is worth $550,000 in 2012 and note that it is now 2017, and take judicial notice of the fact that property markets have increased all over Australia and particularly (omitted) and Sydney, even if the property was still worth $550,000 there would be net equity of $210,412 based on those sums.

14. The father is in receipt of Centrelink benefits, having been made redundant recently, and he also had an unfortunate situation involving a business wherein the business had to be closed and his father had to sell his property to assist him to pay out loans associated with that. 

15. The mother pays to the father the sum of $7.40 per week in relation to child support, and the father informs me that to the best of his knowledge the mother is in receipt of a disability pension. 

16. I am satisfied on that evidence that there is a disparity in the financial resources between the parties and that the mother has the greater financial resources in her possession.

17. It is also very relevant that an inability of a party to pay costs is not a bar to a costs order being made in circumstances where that party’s conduct is determined to warrant an order.[10] 

    [10]Cross & Beaumont [2008] FamCAFC 68.

18. Clearly, the contravention application was wholly unsuccessful.  It was wholly unsuccessful as a direct result of the mother’s failure to prosecute it.  As their Honours said in Hawkins & Roe[11]:

    “The general rule that costs do not follow the event can be displaced by the result of the litigation as well as its conduct by either party.”

    [11] [2012] FamCAFC 77 [21].

19. In terms of whether a costs order is appropriate or not, noting that it is a discretionary issue for this court, their Honours in Hawkins & Roe in dealing with an appeal on a costs order said this:

    ‘Although an appellate court should be very reluctant to interfere with the exercise of discretion in respect of costs (as observed by this Court in Browne v Green (2002) FLC 93-115 and Harris and Harris (1991) FLC 92-254), it can and should interfere when the result is “plainly unjust or if the discretion was exercised on wrong principles.”’[12]

    [12] [2012] FamCAFC 77 [22].

20. In my view, the circumstances of this case would not attract the appellate court’s interest because it is plainly unjust. 

21. In terms of subparagraph (d), the proceedings were not necessitated by a failure of a party to the proceedings to comply with previous orders. 

22. In particular, I note the Application Contravention was based upon the assertion that there should be a return of time spent with the mother pursuant to orders made in 2012. 

23. That application was destined to fail in circumstances where I had previously ordered that that time was to be suspended as a result of an incident that occurred on 31 July 2016.

24. I have not been taken to any offers made by either party, and I have already discussed some of the other matters that I consider relevant – that is, in the substantive proceedings the mother failed to comply with orders on at least two separate occasions.  

25. Those orders were made in her presence.  It shows a course of conduct by the mother that disregards the general principles of litigation, to use the court’s time appropriately to prosecute matters at first instance if at all available or otherwise seek an appropriate adjournment. 

26. None of those things were done. The mother simply filed an application and then abandoned it for reasons best known to her.

27. For all of those reasons, I am satisfied that there are circumstances that justify me making a costs order. 

28. The Applicant seeks costs pursuant to the schedule of the Federal Circuit Court Rules, and appropriately where a daily hearing fee was claimed for today’s purposes the Applicant seeks only half of the schedule fee, noting that the substantive proceedings were listed for an undefended hearing.  Accordingly I will make the orders sought.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 16 June 2017