Department of Communities and Justice & Bamfield (No 5)
[2022] FedCFamC1F 1077
Federal Circuit and Family Court of Australia
(DIVISION 1)
Department of Communities and Justice & Bamfield (No 5) [2022] FedCFamC1F 1077
File number: SYC 1833 of 2021 Judgment of: BENNETT J Date of judgment: 13 December 2022 Catchwords: FAMILY LAW- CHILD ABDUCTION- mechanics of return – where taking parent refuses to return with child to Belgium - where child ordered into care of applicant SCA to be placed in care of requesting parent to facilitate return Legislation: Commonwealth of Australia Constitution Act (Cth) s 71
Family Law Act 1975 (Cth) s 31
Family Law (Child Abduction Convention) Regulations 1986 Pt 3
Cases cited: Quickley & Pelissier [2016] FamCAFC 124 Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 13 December 2022 Counsel for the Applicant: Ms Hartstein Solicitor for the Applicant: DCJ Legal, Department of Communities and Justice Counsel for the First Respondent: Mr Levet Solicitor for the First Respondent: Ashley, Francina, Leonard & Associates Counsel for the Second Respondent: Mr Barbayannis Solicitor for the Second Respondent: Sayer Jones Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Sydney Central ORDERS
SYC 1833 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: DEPARTMENT OF COMMUNITIES AND JUSTICE
Applicant
AND: MS BAMFIELD
First Respondent
MR Q
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
BENNETT J
DATE OF ORDER:
13 december 2022
THE COURT ORDERS THAT:
1.I refuse leave for the mother to make an oral application for a notation to be made to this Order, to the effect that the Family Law (Child Abduction Convention) Regulations 1986 have recently been amended and for a stay of the Order for the return of the child X born 2020 be returned to Belgium pursuant to Part 3 of the Family Law (Child Abduction Convention) Regulations 1986.
2.I dismiss the application in a proceeding filed by the mother on 9 December 2022.
3.The mother pay the father’s costs thrown away on 9 December 2022 fixed in the sum of $3,870.
4.Paragraphs 1, 2 and 3 of the Order made on 20 December 2021 be, and are hereby, discharged.
5.The child X born on 2020 be returned to Belgium pursuant to Part 3 of the Family Law (Child Abduction Convention) Regulations 1986 and, as between the parties, the applicant co-ordinate the making of the arrangements necessary to give effect to this Order.
6.Until further order and to secure the welfare of the child pending the return of the child to Belgium pursuant to this Order, the applicant have care of the child and the child be placed in the care of such person institution or other body as the applicant may from time to time direct and notify to all other parties in writing.
7.By way of arrangements for the return of the child to Belgium:
(a)the father or such other person institution or other body as the applicant may from time to time direct (the accompanying person) accompany the child back to Belgium;
(b)the father pay and be liable for the reasonable cost of transport, airfares and incidental expenses of the child, himself and/or the accompanying person for the child to be returned to Belgium including all reasonable costs by way of airfares, transport and accommodation (but not wages or salary) for the accompanying person to return to Australia following the return of the child to Belgium;
(c)the father advise the applicant and the independent children’s lawyer in writing of the arrangements:-
(i)for the father to travel to Australia to collect the child including his expected time, date and port of arrival;
(ii)to depart Australia for Belgium with the child including flight details.
(d)whether the mother is notified of the arrangements for the return of the child to Belgium is a matter within the discretion of the applicant;
(e)the mother deliver the child and such of the child’s belongings as she is prepared for the child to have to the applicant at the date, time and place nominated by the applicant and notified by the applicant to the mother, father and independent children’s lawyer ;
(f)subject to any further order of the court, for the purposes of sub-paragraph (e) hereof, the applicant may nominate a date for the delivery of the child and her belongings which is not more than 14 days before the date on which the second respondent father notifies the applicant that he and the child are scheduled to travel;
(g)X be placed in the care of the father at least three (3) days prior to her scheduled departure from Australia;
(h)the mother be, and is hereby, restrained by herself, her servants of agents from being at or within 3 kilometres of the airport from which the child’s return flight is scheduled to depart for 12 hours before and 12 hours after the scheduled departure time of the child’s flight;
(i)notification to a party pursuant to this Order is to be sent by email:
(i)to the applicant at …@...
(ii)to the respondent mother at …@...
(iii)to the second named respondent father at …@...;
(iv)to the independent children’s lawyer at …@...-
regardless of whether any such solicitor has ceased to represent the party for whom he/she/the firm is specified as the address to which notification by email is to be sent be sent;
(j)a party who proposes to rely on the fact that a notification has been made pursuant to this Order, be in a position on the relevant return date of the proceedings to prove that the email notification has been sent.
8.The mother be and is hereby restrained by herself her servants or her agents from being a passenger on the flights taken by the father and the child back to Belgium.
9.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the child and the father, pending the return of the child to Belgium, the mother be and is hereby restrained by herself her servants or her agents from being at or within 100 metres of the vicinity of the father and/or at any place at which the father resides or stays.
10.The preceding paragraph of this Order is an order to which a power of arrest pursuant to s 68C of the Family Law Act 1975 (Cth) applies. (see Notation (F))
11.The applicant notify the mother within 24 hours of the child’s departure from Australia.
12.The applicant is to liaise with the mother and father in relation to the arrangements to place X in the care of her father and for this purpose:
(a)The applicant will liaise with the mother and father in relation to a suitable time and venue for handover to take place, and in the event that there is no agreement the applicant will nominate a time and venue.
(b)The mother will be responsible for making arrangements for X to attend the venue agreed or nominated for the handover and will advise the applicant of the arrangements she has made.
(c)The applicant will liaise with the parties and the independent children’s lawyer in relation to whether it is appropriate for X to spend time with her father in Australia, prior to being placed in his care.
13.A warrant for the apprehension or detention of the child be issued, pursuant to regulations 14, 15 and 31 of the Family Law (Child Abduction Convention) Regulations 1986, authorising and directing the Marshal of the Family Court of Australia and the Commissioner and all Federal Agents of the Australian Federal Police and Officers of the New South Wales Police Force and all other Police Officers in all other states and territories of the Commonwealth to find and recover the child, and to deliver the child to the applicant or such person or institution as the applicant nominates.
14.The warrant issued pursuant to the immediately preceding paragraph of this Order lie in the Registry, and not be acted upon, pending further order of the Court.
15.I reserve liberty to each party to make urgent application for the warrant to be activated.
16.If the warrant is acted upon and issued, a copy of this Order and the warrant be sent immediately by electronic means to the AFP Operations Coordination Centre by the Melbourne Registry or the After Hours Service.
17.That if the mother takes or attempts to retake possession of the child after execution of the warrant, she may be arrested without warrant.
18.I DIRECT that my Chambers notify by email to the Legal and Policy Officer of the Principal Registrar and the Officer of the Court in charge of the After Hours Service of how I may be contacted out of hours by the After Hours Service to which a copy of this Order and the Order made on 20 December 2021 are attached and be at liberty to list any after hours application to me urgently for hearing.
19.Pending X’s departure from Australia, the mother and the father be and are hereby mutually restrained by injunction from causing or permitting or suffering the child:
(a)to be removed from the Commonwealth of Australia and in this regard all offices of the Australian Federal Police be directed to enforce, if required, the provisions of this order;
(b)to apply for any further or any other passports for the child;
(c)to be removed from the State of New South Wales, or
(d)to reside other than at her present residential address or any other address at which the applicant has agreed that the child can reside –
other than for the purpose of facilitating the return of the child to Belgium as contemplated by this Order.
20.A sealed copy of this Order be provided forthwith to the Marshall of the Family Court of Australia, the Commissioner of the Federal Police and the police forces and services of the states and territories of the Commonwealth of Australia and the Secretary of the Commonwealth Department of Foreign Affairs and Trade.
21.The Independent Children’s Lawyer provide a copy of this Order to the clerk of courts at Suburb AD Local Court under cover of correspondence referencing the provisional family violence order referred to herein. (see Notation (E))
22.The Marshall of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the states and territories of the Commonwealth of Australia are requested and empowered to take all necessary steps to give effect to this Order.
23.That there be liberty to each of the parties and independent children’s lawyer to apply urgently to relist the matter before me (if I am reasonably available) in relation to implementation of this Order and in respect of any machinery provisions for the return of X to Belgium.
24.The Registrar of the Court IS DIRECTED to release the mother’s passport to her upon X departing Australia.
25.I will deliver my reasons subsequently.
26.The proceedings this day be transcribed and be placed on the Court file.
IT IS DIRECTED:
27.That the proposed minute of orders of the applicant be marked “SCA1” and remain on the Court file.
28.The proposed minute of orders of the independent children’s lawyer be marked Exhibit “ICL1” and remain on the court file.
29.The copy of the Provisional Order, Apprehended domestic violence order of the Suburb AD Local Court , Police Application ID ..., Police Application Event Number ... be marked Exhibit “F1” and remain on the Court file.
30.The document “Costs sought by the second respondent father for the adjourned hearing on 9 December 2022” be marked Exhibit “F2” and remain on the Court file.
IT IS FURTHER ORDERED BY THE COURT THAT:
31.As the Application in a Case of the respondent mother filed with leave on Friday 9 December 2022 has been dismissed the proceedings are now over.
IT IS NOTED BY THE COURT THAT:
A.The father has complied with order 4(b) of the Order made on 20 December 2021.
B.The father has confirmed that health and hospital insurance for X has been paid and will be renewed at the commencement of 2023 (orders 4(d) and (e) of the Order of 20 December 2021). The father agrees to reimburse the mother for the costs of her health and hospital insurance.
C.If the mother returns to Belgium within 21 days of X’s return, the father has confirmed that he will comply with orders 5, 6, 8, 9 and 10 of the Order of 20 December 2021.
D.In the event that the mother does not re-enter Belgium, orders have been made by a court of competent jurisdiction in Belgium requiring the father to facilitate telephone or video communication between X and her mother. Liberty to apply for further parenting orders was reserved to the mother in the event that she does re-enter Belgium.
E.On 12 December 2022 a provisional family violence order was made pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) against the father for the protection of the mother and the child by the Suburb AD Local Court in New South Wales if:-
(a)To the extent that the said provisional family violence order prohibits the father from approaching within 100 metres of the place where the child lives or works, the provisional family violence order is inconsistent within the meaning of s 68P(2) of the Family Law Act 1975 (Cth), with the applicant Department of Communities and Justice permitting and facilitating the child spending time with the father after he arrives in Australia and accompanying the child on her return to Belgium, is inconsistent with the provisional family violence order.
(b)Once the father arrives in Australia he will notify the Applicant State Central Authority, Department of Communities and Justice, of what arrangements he has made for the return of the child to Belgium. The applicant State Central Authority, Department of Communities and Justice, will take possession of the child and the child’s belongings from the mother and the father will accommodate himself and the child in accommodation of his choosing or as specified or provided by the applicant State Central Authority. The child will remain in the care of the father for not less than 3 days before her scheduled departure from Australia. A Proper Officer of the applicant will meet the father and the child at the airport and provide the father with the child’s passport for the purpose of travel and to be retained by him. A Proper Officer of the applicant will supervise the father and the child pass through the international departure gate. The father will accompany the child on the flights back to Belgium and be solely responsible for the care of the child on route to Belgium including during any scheduled overnight stays. The mother is prohibited from attending at or in the vicinity of the airport and from travelling on the same flight as the father and the child. The mother is also prohibited from approaching within 100 metres of the father.
(c) A Proper Officer of the applicant explain this Order to the father.
(d) The mother’s legal practitioners explain this Order to the mother.
(e)The court has made this Order for the purpose of implementing the safe and prompt and orderly return of the child X to Belgium pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
(f)The injunction against the mother approaching within 100 metres of the father or any place at which he may live or stay, is a personal protection order within the meaning of s68B of the Family Law Act 1975 (Cth). Section 68C of the Act provides:
Section 68C
(1) If:
(a)an injunction is in force under section 68B for the personal protection of a person (the protected person); and
(b)a police officer believes, on reasonable grounds, that the person (the respondent) against whom the injunction is directed has breached the injunction by:
(i)causing, or threatening to cause, bodily harm to the protected person; or
(ii) harassing, molesting or stalking that person;
the police officer may arrest the respondent without warrant.
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 Department of Communities and Justice & Bamfield has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
This matter comes before me on the adjourned return date of a hearing to refine the arrangements for the return of the child X born 2020 to Belgium pursuant to the Family Law (Child Abduction Convention) Regulations 1986.
By way of context for the Order made today, I will commence with a description of some significant events in chronological order.
On 8 December 2021 I made the return order following a contested hearing in which Mr BJ appeared for the mother. That decision is found at [2021] FedCFamC1F 263.
On 14 March 2022 the Full Court dismissed the mother’s appeal against the return order. That decision is found at [2022] FedCFamC1A 35.
On 18 November 2022 the High Court refused the mother’s application for special leave to appeal. A transcript of the hearing can be found at Bamfield v Secretary, Department of Communities & Justice & Ors [2022] HCATrans 209.
On 9 December 2022 the matter was listed before me to refine the orders for the mechanics of X’s return to Belgium. The mother sought to rely on an unfiled application in a proceeding, an affidavit and other documents which were not admissible. Ultimately, I gave the mother leave to file the application and for the mother to proceed with that application. The mother sought:
1.That pursuant to section 111CG (2) (a) of the Family Law Act,1975 the court order that the Commonwealth Central Authority do both of the following in a way that the Commonwealth Central Authority considers appropriate:
(a)to request, under Article 9 of the Child Protection Convention, that the competent authority in Belgium, agree to the Federal Circuit and Family Court of Australia assuming jurisdiction to take a Commonwealth personal protection measure relating to the child [X] (DOB: […] 2020;
(b) to report to the court about the outcome of the request.
2.That pursuant to section 111CD of the Family Law Act, 1975 the orders of 20 December 2021 be stayed
3.That the Respondent to undergo psychiatric examination to determine the impact on the Applicant of the following matters
a. Returning to Belgium with the subject child
b.Separation from the subject child if the respondent is unable to return to Belgium with the child
c.The impact on the Respondent and the subject child, if the subject child being a First Nation’s Indigenous child, were to be sent off country
4. Such other or alternative order as this honourable court deems fit.
Ms BK, for the mother, was unable to specify what power I had to stay the return order. Ms BK was unable to explain why her client sought an order against herself that she undergo a psychiatric assessment. As an adult, the mother can submit herself to whatever assessments she wishes.
Counsel for the father and the applicant sought an adjournment of the mother’s Application in a Proceeding so that they could respond to the mother’s evidence (such as it was). I adjourned the mother’s Application in a Proceeding but indicated that I would proceed to refine the arrangements for X’s return to Belgium.
Apropos the mechanics of return, the mother’s solicitor informed the court that she had been unable to get instructions as to whether the mother wished to accompany X back to Belgium. Given the numerous other matters about which the mother had apparently been able to give instructions, it was not clear to me whether the mother could not or would not give instructions.
On 9 December 2022 I adjourned the proceedings to today (13 December 2023) and otherwise made orders which, inter alia, provided as follows:
1. There be leave to the respondent mother to file the Application in a Case and the affidavit of [Ms BL] sworn or affirmed on 9 December 2022 and those documents be deemed served as sealed.
2. By not later than 12.00 noon on 12 December 2022 the respondent mother and/or her solicitor or other interested person file any application pursuant to s 3(12)(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 for the appointment of a litigation guardian.
3.By not later than 12.00 noon on 12 December 2022 the respondent mother inform all parties to the proceedings if she will accompany the child [X] born […] 2020 back to Belgium. In the absence of notification, it will be assumed that the mother will not be accompanying the child.
4.The costs of the second respondent father of and incidental to this day be reserved.
5.The proceedings this day be transcribed and, when transcribed, a copy be placed on the Court file.
6.This matter is otherwise adjourned for further hearing before me to 9.00 am on Tuesday 13 December 2022.
IT IS DIRECTED:
7. That the email trail from the Department of Communities & Justice beginning 6 December 2022 seeking a listing of this matter be marked Exhibit “SCA1” and remain on the court file.
8. The proposed minute of orders of the respondent mother be marked Exhibit “M1” and remain on the Court file.
9. The proposed minute of the second respondent father be marked Exhibit “F1” and remain on the Court file.
10. The marked up minute of the independent children’s lawyer inclusive of amendments by the applicant and the respondent father be marked “ICL1” and remain on the court file.
11. The letter from the practitioner for the second respondent father dated 29 November 2022 to the practitioner for the respondent mother inclusive of applications for healthcare and hospital insurance be marked Exhibit “F1” and remain on the Court file.
AND IT IS NOTED BY THE COURT THAT leave to the mother to file and rely upon a document from her sister, [Ms B], and a letter from [BM Clinic] was refused but each other party has been provided with a copy.
Today Ms Hartstein, of counsel, appears for the applicant State Central Authority. Mr Levet, of counsel, appears for the mother who has changed solicitors to Ashley, Francina, Leonard & Associates. Mr Barbayannis, of counsel, appears for the second respondent father. Ms Phillips appears as the Independent Children’s Lawyer.
No application seeking the appointment of a litigation guardian for the mother has been filed so I will presume that the mother’ solicitors consider that the mother can give adequate instructions.
The mother has not informed the other parties whether she will accompany X back to Belgium. Having regard to paragraph 3 of the Order made on 9 December 2022, I deem the mother’s lack of response as notification that she will not accompany the child to Belgium.
Counsel for the mother expressly abandoned the Application in a Proceeding filed (with leave) on 9 December 2022. I will make an order reflecting that it is withdrawn. Counsel for the mother sought leave to make an oral application for three orders. First, that there be a notation that the Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022 that were assented to on 8 December 2022 and came into effect on 10 December 2022. Second that the matter be adjourned for a short period to enable the parties to properly consider the effect of the regulation. Third, that the operation of the Order made on 8 December be stayed pending further order. The other parties opposed leave being granted.
I asked counsel for the mother to specify what power I had to stay the return order and stood the matter down to give him some further time to research.
Counsel for the mother placed reliance on the original jurisdiction of the Family Court under s 31 of the Family Law Act 1975 (Cth) (“the Act”) and s 71 of the Commonwealth of Australia Constitution Act (Cth) (“the Constitution”). Part IV of the Act – the Family Court of Australia was repealed effective 1 September 2021. Counsel did not seek to address me on any corresponding provision of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Section 71 of the Constitution provides:
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction […]
Counsel for the wife submitted that this court has inherent or incidental jurisdiction or necessary powers pursuant to which I can stay the return order. There was the following discussion:
COUNSEL FOR THE MOTHER: Inherent jurisdiction. Your Honour, DJL says that one does not use the term inherent jurisdiction, and the High Court says it in the context of a court created by statute that it was an unhelpful term, and they referred to the terms, incidental and necessary powers. What I say to your Honour is that in circumstances where your Honour is not fully functus officio, that your Honour has powers which are incidental for the matter before your Honour. That if your Honour is considering machinery provisions for the return of a child pursuant to the convention, it is necessarily incidental to the exercise of such powers that your Honour considers whether the new regulation, or the amendment to the regulation, has any effect and - -
HER HONOUR: Okay. Assume it doesn’t because that’s what it says. What you really want to say, isn’t it, Mr Levet, that pursuant to my necessary and incidental powers to make provision for the machinery to return this child to Belgium, I can decide that she ought not be returned to Belgium; that’s what you’re saying, isn’t it?
COUNSEL FOR THE MOTHER: Yes, your Honour.
HER HONOUR: Yes. Well, it’s wrong and you know it’s wrong and that happens to be why you haven’t said it. That’s what your case would have to be if you could succeed, wouldn’t it?
COUNSEL FOR THE MOTHER: Yes. That’s what it would have to be. Yes, your Honour.
HER HONOUR: And it isn’t.
COUNSEL FOR THE MOTHER: Your Honour, I can’t take it further than I have.
I am not satisfied that this court, created as it is by statute, has the jurisdiction to which Mr Levet (for the mother) refers and nor do I have any other power pursuant to which I could stay the return order.
This is not a matter in which any reliance is placed on the court’s power to discharge a return order under reg 19A.
I am not satisfied that it is appropriate to grant an adjournment for the purpose of the mother’s practitioners further considering the amendments to the Regulations as the amendments do not apply to this application. They are expressed to apply to applications filed after 10 December 2022.
As I am not satisfied that an application by the mother for a stay of the return order has any prospect of success, I decline the mother permission to make such application orally with the effect that there is no application before the court.
The mechanics of return were the subject of submission and discussions about which I need only to make a few comments.
Now that it is definite that X is to be returned to Belgium, that return should be effected as soon and as simply as possible.
The applicant State Central Authority opposes the mother accompanying the child back to Belgium. I accept that position. At the defended hearing before me, senior counsel for the mother informed the court that the mother would not be separated from the child. However, within a very short time thereafter the mother adopted the opposite position to the court in Belgium and said that she would not accompany the child and that her presence in Belgium should not be factored into any parenting arrangements. As of 9 December 2022 the mother’s solicitor, Ms BK, could not get instructions from the mother as to the mother accompanying the child. Today, Mr Levet of counsel, mentioned “I managed to obtain instructions verbally from my client yesterday to the effect that, if the child was returned, my client would accompany the child...”. The significance of verbal instructions was not explained and Mr Levet did not pursue his client’s entitlement to travel with the child. I note two days earlier, the mother constructively said that she would not travel with the child (by not giving notice that she would). I have grave concerns about the mother accompanying the child given the mother’s past behaviour at the airport and her vacillating. The parents can certainly not travel on the same aircraft.
It is in X’s best interests that her return to Belgium be without incident or false starts. I am satisfied that the child should be handed over to the father some days ahead of any scheduled return. The purpose of that buffer is to allow for any difficulties in collection of the child. I will order a warrant issue but not be executed until further order.
I know that X has only recently been re-acquainted with the father face to face and vice versa. The fact that he will be X’s primary carer en route to Belgium, and possibly thereafter, is consequence of decisions taken by the mother. It could have been different. The father would be well advised to have assistance of another or accompanying person as international travel is tiring at the best of times. If the applicant State Central Authority has to arrange to escort the child to Belgium, it would be with a minimum of two child protection workers.
Counsel for the mother informed the court that an apprehended violence order was made in the Local Court at Suburb AD yesterday. A provisional order had been made recently and the order made yesterday was an interim order. The matter is set down for hearing in the Local Court at Suburb AD in early 2023. The scope of prohibited behaviour is uncontroversial. Relevantly, the interim apprehended violence order prohibits the father from attending at or within 100 metres of the vicinity of any place at which X resides. As it is intended that X will be placed in the care of the father for some time prior to the proposed date of their travel back to Belgium, it is readily conceivable that the X will be residing with the father. These provisions are inconsistent with one another.
Section 68P of the Act provides where an order or injunction made under the Act is inconsistent with an existing family violence order, the court making the order under the Act must specify and explain and facilitate certain explanations to the parties and protected persons of certain aspects of the family law order. I will do that.
Finally, the father seeks his costs reserved on the last day in court, 9 December 2022 on the basis that those costs were thrown away by virtue of the mother’s late reliance on an unfiled application and the inability of the mother’s solicitor to say whether her client couldn’t or wouldn’t give instructions about accompanying the child back to Belgium. Costs are sought on a solicitor own client basis and, at my insistence, also quantified on scale.
The starting point, as set out at s 117(1) of the Act, for the consideration of costs is that each party bear their own costs. However, subject to the balance of s 117, where there are “circumstances to justify it doing so” the court may make such order for costs as it considers just. Section 117(2) does not specify what is to inform the exercise of the court’s discretion to find that there are circumstances which justify a costs order being made. It follows, therefore, that all but extraneous matters may be taken into account including the matters specified in s 117(2A). The fact that the father’s costs were thrown away by the mother’s late reliance on an application and the mother vacillating over whether to accompany the child back to Belgium are, in my opinion, justification for departure from the primary position (each party pay their own costs) and for some order to be made as to costs against the mother and in favour of the father.
Section 117(2A) sets out the relevant considerations for determining what, if any, order for costs should be made. Counsel for the mother indicated that I did not have up to date evidence of the financial position of the father or the mother but, sensibly, did not press an adjournment in light of established authority that impecuniosity is not a bar to an order for costs. I assume that the father is in a stronger financial position than the mother and that the mother has exhausted all of the invested funds which came from the father. I accept that the mother’s conduct of the proceedings on 9 December 2022 resulted in the father incurring legal costs where the matter was no further advanced. That is, through no fault of his own, his costs for that day are thrown away.
To the extent that the father seeks solicitor own client costs or indemnity costs, I will not quantify his costs in that manner. In Quickley & Pelissier [2016] FamCAFC 124 the Full Court identified that such an order requires “some special or unusual feature in the case to justify the court departing from the ordinary practice,” requires exceptional circumstances to justify such a “very great departure from the normal approach,” and is reserved for extreme cases.
I will quantify the father’s costs on the more modest calculation provided in respect of which counsel for the mother did not seek to be heard. The mother did not seek to be heard on a time for payment. Accordingly, no delay in payment will be allowed. The costs are payable forthwith.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 25 January 2023
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