FAIRFAX & MAGUIRE
[2013] FamCA 174
FAMILY COURT OF AUSTRALIA
| FAIRFAX & MAGUIRE | [2013] FamCA 174 |
| FAMILY LAW – CHILDREN – Parenting Arrangements – where the child lives with the mother – where the child has no relationship with the father and had not interacted with him for three (3) years – where the child was at risk of psychological and physical harm in the father’s care from subjection or exposure to family violence, abuse and neglect – where the father did not have the capacity to meet the child’s needs – where the mother’s parental capacity would be impaired if she was obliged to ensure the child’s interaction with the father – where the child expressed genuine fears about spending time with the father – where the father suffered from severe mental ill health about which he had no insight – where the father chose to withdraw from proceedings and the trial was heard in his absence FAMILY LAW – INJUNCTIONS – Restraint of the parties from permitting the child to spend time or communicate with the father – father restrained from approaching the child’s school or mother’s residence – where there was a need to protect the mother and child from family violence – where the father had an extensive history of perpetrating family violence – where the father had contravened past family violence orders FAMILY LAW – PARENTAL RESPONSIBILITY – Mother allocated sole parental responsibility for the child – where the presumption of equal shared parental responsibility did not apply due to family violence FAMILY LAW – JURISDICTION – No power to prevent the father from commencing future proceedings other than pursuant to section 118(1)(c) of the Family Law Act (Cth) (“the Act”) – there is no power to restrain future proceedings pursuant to sections 67ZC or 68B of the Act FAMILY LAW – COSTS – Costs application made by the Independent Children’s Lawyer against only the mother – no application made against the father as he had withdrawn from the proceedings – application dismissed |
| Family Law Act 1975 (Cth) ss 60CG, 62B, 61DA, 65DA, 65DAC, 67ZC, 68B, 68L, 118 and 117 |
| Allesch v Maunz (2000) 203 CLR 172 Jacks & Samson (2008) FLC 93-387 Keaton & Mahoney [2012] FamCA 658 Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 |
| APPLICANT: | Mr Fairfax |
| RESPONDENT: | Ms Maguire |
| INDEPENDENT CHILDREN’S LAWYER: | Craney Family Solicitors |
| FILE NUMBER: | NCC | 528 | of | 2011 |
| DATE DELIVERED: | 22 March 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 4 & 7 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Mr R Powe as agent for Kate Mailer Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr M Bateman |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Craney Family Solicitors |
Orders
All former orders relating to the child B, born … December 2004, (“the child”) are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The parties are restrained from causing or allowing the child to spend time or communicate with the father.
Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:
(a)The mother’s residence; and
(b)Any school attended by the child.
Leave is granted to the mother to furnish copies of the following documents to the child’s counsellor:
(a)A sealed copy of these orders;
(b)The Family Report dated 9 February 2012; and
(c)The single expert report of Dr C dated 25 July 2012.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
The application for costs made by the Independent Children’s Lawyer against the mother is dismissed.
Any and all outstanding applications are dismissed.
Notations
(A)The mother undertakes to ensure the child continues to receive therapeutic counselling until advised to cease by the counsellor.
(B)The mother undertakes to continue her own therapeutic counselling until advised to cease by the counsellor.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fairfax & Maguire 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 NEWCASTLE |
FILE NUMBER: NCC 528 of 2011
| Mr Fairfax |
Applicant
And
| Ms Maguire |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings began as a vociferous dispute between the applicant father and respondent mother over the parenting orders for their youngest child, but ended meekly with complete concurrence between the mother and Independent Children’s Lawyer about the nature of such orders following the father’s withdrawal from the proceedings.
The mutual position of the mother and Independent Children’s Lawyer, supported in all respects by the evidence, required the rather dramatic remedy of elimination of the father from the child’s life.
Background
The parties had two children together. Their eldest child (“R”) was born in 1990 and is now an adult. The youngest child, who is the subject of these proceedings, was born in 2004 and is now eight years of age.
The parties’ relationship lasted more than 20 years, but was punctuated by frequent separations and reconciliations. They separated for the final time in March 2008 when the child was barely three years of age.[1]
[1] Family Report, para 3
After separation the child continued to live with the mother and for approximately the next 12 months did not spend any time with the father due to his unpredictable psychological state and uncertainty about his residential address.[2] The child began to see the father on an ad hoc basis from 2009, but that was ordinarily under the supervision of the paternal grandmother. That arrangement ceased following the death of the paternal grandmother in early 2010.[3]
[2] Mother’s affidavit, paras 68-71
[3] Mother’s affidavit, paras 72-78, 92
The father commenced these proceedings by filing an Initiating Application in the Local Court of NSW in December 2010.[4] The proceedings were later transferred to the Federal Magistrates Court and then later to this Court.
[4] Family Report, para 9
Some critical interim orders were made at an early stage in the proceedings, which perpetuated the child’s isolation from the father.
On 1 June 2011 an order was made for the child to live with the mother and no specific order was made for her to spend time or communicate with the father.
On 12 August 2011 an injunction was made restraining the father from approaching the mother and the child, either directly or indirectly.
The child has not spent time or communicated with the father since early 2010.
Absence of the father
Even though the father commenced these proceedings, his involvement was intermittent and he eventually withdrew from them.
He failed to appear when the first set of interim orders was made in June 2011, but was represented by the duty solicitor when the second set of orders was made in August 2011.
The father attended upon the Family Consultant for consultation in February 2012, was privately represented when procedural orders were subsequently made by the Court in March 2012 and April 2012, and attended upon the single expert for consultation in June 2012.
The father was also represented by counsel at Court in October 2012 when the proceedings were fixed for trial and ancillary procedural orders were made, but that was where the father’s involvement ended.
He failed to file any affidavit material in accordance with the procedural orders and his solicitor gave notice of the cessation of her representation of the father in January 2013. The father failed to appear at Court for the final trial, which was listed to start in early March 2013.
The Independent Children’s Lawyer wrote to the father informing him that the start of the trial was delayed by three days,[5] but the father still did not appear and so the trial therefore proceeded on an undefended basis.
[5] Exhibit ICL2
It is a fundamental principle of natural justice that parties should be afforded a reasonable opportunity to appear and present their case before the Court, but being afforded the opportunity and making use of it are different things. If a party renounces the given opportunity to be heard by failing to attend Court without offering a reasonable explanation then there is no miscarriage of justice by continuation of the trial in the absence of that party. The court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).
Joint proposal of the mother and independent children’s lawyer
The mother and Independent Children’s Lawyer petitioned the Court to make parenting orders in accordance with their joint proposal.[6]
[6] Exhibit ICL1
Their disagreement only related to a costs order sought by the Independent Children’s Lawyer against the mother,[7] which is separately discussed later in these reasons.
[7] Exhibit ICL1, Order 7
Their joint proposal was for the mother to have sole parental responsibility for the child, for the child to live with her, and for the father to be expressly restrained from interacting with the child and from attending near the mother’s residence or the child’s school.
The mother and Independent Children’s Lawyer also sought an injunction restraining the father from commencing further proceedings without leave, but that application will also be separately addressed.
The evidence
The mother and Independent Children’s Lawyer relied upon the following evidence:
(a)The mother’s affidavit filed on 24 January 2013;
(b)The affidavit of her partner, Mr D, filed on 24 January 2013;
(c)The Family Report dated 9 February 2012; and
(d)The single expert report of Dr C, psychiatrist, dated 25 July 2012.
Neither the mother nor the Independent Children’s Lawyer sought to cross-examine either the Family Consultant or the single expert, and the Independent Children’s Lawyer did not require the mother for cross-examination.
The father filed affidavits much earlier in the proceedings, but they were not read since he did not appear to prosecute his parenting application or submit to cross-examination.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of the child
Primary considerations (s 60CC(2))
The child has a close and loving relationship with the mother which cannot be compromised.
By comparison, the child has no current relationship with the father. She has not interacted with him in any way for over three years. Whether their relationship could be recovered so it becomes a filial relationship from which the child derives future benefit is debatable, but the overwhelming evidence of family violence and psychological instability lead inexorably to the conclusion that no attempt at recovery should even be made.
The father commenced acting violently towards the mother following the birth of R in 1990. His violent behaviour steadily worsened, apparently in correlation with his deteriorating psychological condition.
The father often savagely assaulted the mother by punching her in the face and to other parts of her body, kicking her, hitting her with implements, and throwing items at her. The mother was occasionally injured by the attacks. The father also destroyed and damaged their property, including by punching holes in walls and smashing windows. Such violence often occurred in the presence of R, the child, or both of them, which terrified them.
The father even directed his violence to R, which caused her to leave the family home at 16 years of age and live with friends.
The mother’s reports of family violence were independently corroborated by R to the Family Consultant.[8] She informed the Family Consultant that the father even threatened her with the death of the mother by sending her a text message, at a time when the paternal grandmother was ill, saying:[9]
“The night my mum dies is the night your mum dies.”
[8] Family Report, paras 38, 41
[9] Family Report, para 39
The father made similar grave threats directly to the mother, telling her such things as:
“I’ll kill you and she [the child] will be mine anyway”;
“I’m going to cut you”; and
“I am going to burn you”.
Apart from physical violence, the father treated the mother and children disdainfully, calling the mother such depraved names as “tunnel cunt”, “slut” and “whore”, and calling R a “little cunt”.[10]
[10] Family Report, para 41
In about April 2007, the father was admitted involuntarily to a mental health facility for treatment for approximately five weeks. The father reported that he was then diagnosed with “Bipolar Disorder” and told he was “paranoid and delusional”, but he still refutes the diagnosis.[11]
[11] Single expert report, page 10
The mother was alerted to the father’s imminent departure from the mental health facility and in May 2007 she took steps to obtain an apprehended violence order against the father for the protection of her, R and the child. The family violence order was made on a provisional basis and ultimately converted to a final order in June 2008 for a period of 12 months.
Regrettably, the family violence order was not a deterrent to the father. He continued to harass the mother by personal attendances at her home, telephone calls, and text messages. His behaviour was generally erratic and irrational.
In an apparent attempt to placate the father, the mother allowed the child to spend some time with the father in the company of the paternal grandmother during 2009. On occasions the father withheld the child for some days and taunted the mother by telling her:
“I’m not bringing her [the child] back.”
The father’s psychological condition deteriorated further at about the time of the paternal grandmother’s death in early 2010, which caused him to again be involuntarily admitted to a mental health facility for further treatment. The mother thought the duration of his admission was about eight weeks, but the father told the Family Consultant it was for a period of some four months.[12] Irrespective, the child has not spent any time with the father since the paternal grandmother’s death and the father’s hospitalisation in early 2010.
[12] Family Report, para 25
The father also told the Family Consultant he had a more recent admission to a mental health facility in September 2011 for a period of three weeks and still has ongoing monthly injections of medication.[13] That subsequent period of hospitalisation was confirmed by the single expert.[14]
[13] Family Report, para 25
[14] Single expert report, page 10
Despite the injunction made in August 2011 precluding the father from approaching either the mother or the child, he continued to contact the mother by text messages. By way of example, the mother told the Family Consultant the father had sent her hundreds of text messages in the week preceding their appointments in February 2012.[15] One of the messages was a video clip of a child on a wall with the background sound of a rifle loading, discharging and reloading several times,[16] which the mother understandably found menacing.
[15] Family Report, para 18; Single expert report, page 6
[16] Family Report, para 32
When questioned by the Family Consultant about the use of his mobile telephone the father’s response was described as “highly irregular”.[17] The father’s denial to the Family Consultant that he had contacted the mother after the injunction in August 2011 was patently false,[18] since he later admitted to the single expert sending messages to the mother.[19]
[17] Family Report, para 24
[18] Family Report, para 27
[19] Single expert report, page 11
Similarly, the father’s denials to both the Family Consultant and single expert of his violent conduct towards the mother and children were also false.[20]
[20] Family Report, para 29, 56; Single expert report, pages 9-10
The mother reported the father’s harassment to police in February 2012 and another provisional apprehended violence order was taken out by police against the father for the protection of the mother and child. The order was converted to a final order on 13 March 2012 for a period of two years, consequent upon the father’s conviction for a variety of telecommunications offences related to the text messages he sent to the mother.
As would be obvious, there is a pronounced need to make orders which protect the child from physical or psychological harm through her subjection or exposure by the father to abuse or family violence. There is also a need to protect the mother from exposure to family violence at the hands of the father (s 60CG(1)(b)).
The only way in which to accomplish those two consistent objectives is to ensure that the father is eliminated from the child’s life. More moderate measures to ensure those objectives in the past have failed.
History shows the father has always acted aggressively to achieve his ends and that he ignores orders imposed by the Court to modulate his behaviour. As long ago as 2002 an apprehended violence order was made against the father due to his hostile conduct towards a third party, which order he breached in 2003.[21] More recently, the father failed to comply with the apprehended violence orders made for the protection of the mother by the Local Court of NSW in May 2007 and June 2008. He also failed to comply with the injunction made by this Court in August 2011 restraining him from contacting the mother.
[21] Family Report, para 12
Additional considerations (s 60CC(3))
Apart from the father’s overt propensity to act violently towards or in the presence of family members, his general behaviour can be utterly unrestrained and without any sense of decorum. Several examples illustrate the point. When R was still in primary school the father spoke to her about them selling illicit drugs together and on her 16th birthday he offered her an ecstasy tablet to take.[22] The father also told R that he “want[ed] to fuck” two of her friends, who were aged only about 16 years at the time, and he also discussed with R her becoming a prostitute to “make men very happy”.[23] Such behaviour is anathema to responsible parenting.
[22] Family Report, para 43
[23] Family Report, para 42
The father is afflicted by “Schizoaffective Disorder” and he has limited insight into the diagnosis of his mental illness. The condition causes him to have prominent persecutory delusions and periods of significant mood changes[24] and to “incorporate [the mother] in his psychotic thinking”.[25]
[24] Single expert report, page 12
[25] Single expert report, page 14
The father’s refusal to accept that he has unstable mental health is worrying, particularly when he knows he receives a disability pension because of his diagnosed condition.[26] He told the Family Consultant he was “all good” and “very stable and secure”, but that seems doubtful since he also told the Family Consultant he was injected with a “truth serum” once per month,[27] which is in fact the mood stabiliser Epilim.[28] He maintained to the Family Consultant he had “never” been unwell and had only been hospitalised because of false reports made by the mother about him[29] and made comments of a similar nature to the single expert.[30]
[26] Single expert report, page 11
[27] Family Report, para 25
[28] Single expert report, page 10
[29] Family Report, para 30
[30] Single expert report, page 11
If that is genuinely the father’s opinion then, as the Family Consultant rightly observes, there is good reason to doubt the father’s continued voluntary compliance with any treatment regime.[31] The single expert reported being told by the father’s treating psychiatrist that the father’s relapse in early 2012 was caused by cessation of his medication.[32]
[31] Family Report, para 55
[32] Single expert report, page 12
Although the Family Consultant and the single expert both reported that the father can sometimes function reasonably well,[33] the state of his mental health is prone to vacillate unpredictably.
[33] Family Report, para 54; Single expert report, page 12
The father’s unstable psychological state, as evidenced by his numerous involuntary admissions for psychiatric treatment, is potentially worsened by his use of illicit drugs. Despite the father’s disavowal of use of illicit drugs, the Family Consultant reported he has used illicit drugs for decades, including as recently as 2011, and described his drug use as “chronic”.[34]
[34] Family Report, paras 4, 14, 54, 59
The father’s delusions of grandeur compound concerns about his reliability. Without a shred of corroboration, the father reported to the Family Consultant that he is self-employed in the entertainment industry and has generated sufficient income to make him and his children millionaires.[35] The fact is, since separation in 2008, the father has paid no more than $300 to the mother by way of child support.[36] The Family Consultant was surely correct to observe that the father is either deliberately deceptive or lacking a sound grip of reality, “or perhaps a combination of the two”.[37]
[35] Family Report, paras 14, 26
[36] Family Report, paras 16, 65
[37] Family Report, para 62
The child clearly insisted to the Family Consultant in February 2012 that she would not see the father,[38] but was not quite so strident about the father when speaking with the single expert in June 2012. She told the single expert she wondered what the father looked like and was “unsure” whether she wished to see him.[39] Although the child’s attitude towards the father seems malleable, she remains unconvinced about the advisability of seeing the father.
[38] Family Report, paras 48, 52
[39] Single expert report, pages 3, 13
The mother reported the child remains “absolutely petrified” of the father,[40] which perception she formed after witnessing the child on two past occasions scream and run away to hide after she saw the father attend their home. Assuming that was a truthful report about the child’s reaction, the evidence galvanises the proposal to exclude the father from the child’s life.
[40] Single expert report, page 2
It is possible the mother exaggerates the child’s fear of the father, but even if that is so, the exaggeration is born of her own fear of the father, which the single expert reports is quite genuine. The mother cannot bear to contemplate the child’s curiosity about the father because she cannot countenance the thought of him still being part of their family.[41] Undoubtedly the mother’s genuine feelings must influence the child’s attitude towards the father to some extent.
[41] Single expert report, page 13
Parenting orders
The Act mandates the Court’s initial consideration of how to allocate parental responsibility for the child (s 61DA).
The presumption of equal shared parental responsibility does not apply because of the rank history of family violence perpetrated by the father (s 61DA(2)).
It would not be in the best interests of the child for the parties to be allocated equal shared parental responsibility for her. Such an order would require the mother’s co-operation with the father when that is beyond her. Over the mother’s objection and in contravention of orders made in other courts, the father has continued to repeatedly harass the mother by text messages. For good reason, the mother is hyper-vigilant about and avoidant of the father.[42] She suffers from “intrusive memories and flashbacks”.[43] The mother could not possibly confer with the father over issues of major long-term importance to the child, as the Act would require of her if the parties had equal shared parental responsibility (s 65DAC).
[42] Affidavit of Mr D, para 15
[43] Single expert report, page 7
The only viable outcome is for the mother to have sole parental responsibility for the child, given that it is inevitable the child must live with her. That conclusion accords with the recommendation of both the Family Consultant[44] and the single expert.[45] As the single expert opined, it is “very important” that the orders do not undermine the mother’s capacity to manage her feelings about the father and compromise the quality of her care of the child, which means that the orders must protect the mother “from any contact with [the father]”.[46]
[44] Family Report, para 75
[45] Single expert report, pages 14, 15
[46] Single expert report, pages 13, 14
That then leaves for consideration the question of whether the child should spend time or communicate with the father, and if so, the circumstances in which that may occur.
I accept the Family Consultant’s opinion that, provided the allegations made against the father by both the mother and R are efficacious, “extreme caution” should be exercised in determining whether the child should have “any future communication” with the father.[47] I also accept the unambiguous opinion of the single expert that the child should not spend any time with the father.[48]
[47] Family Report, paras 73-74
[48] Single expert report, pages 14, 15
It is indeed a drastic step to order that a child not spend any time with a parent and not communicate with that parent at all. Nonetheless, such orders are warranted in certain cases, of which this is one. Significantly, that outcome accords with the submissions of the mother and Independent Children’s Lawyer and the opinions of the Family Consultant and single expert.
The therapy currently being undertaken by both the child and the mother was apparently arranged by the mother in response to the single expert’s recommendations.[49] The notations to the orders reflect the notations sought by the mother and Independent Children’s Lawyer.[50] The orders permit the mother to provide copies of the orders, the Family Report, and the single expert report to the child’s counsellor to assist in the child’s therapy. An order granting that permission is preferable to the mere notation proposed by the mother and Independent Children’s Lawyer.[51]
[49] Single expert report, pages 13, 15
[50] Exhibit ICL1, Notation A
[51] Exhibit ICL1, Notation B
The Family Consultant made other recommendations about the father’s consultation with doctors and his participation in therapy,[52] but orders compelling such consultation are beyond the power of the Court unless a parenting order is made conditional upon fulfilment of such orders (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[227]), and there was no basis to link the father’s fulfilment of such obligations to any parenting orders in this case. Nevertheless, the father will hopefully heed the advice of the Family Consultant.
[52] Family Report, paras 76-77
Restraint of further proceedings
The mother and Independent Children’s Lawyer mutually sought an order restraining the father from bringing any further application for parenting orders concerning the child without the prior leave of the Court.[53]
[53] Exhibit ICL1, Order 12
The restraint of future proceedings is the express province of s 118(1)(c) of the Act and, as was observed in Keaton & Mahoney [2012] FamCA 658 at [74]-[76] in relation to an order of like effect proposed in those proceedings:
74. The Court has limited statutory power to make an order of the type proposed by the Independent Children’s Lawyer (s 118(1)(c)), but it should be exercised sparingly even when the circumstances for its invocation are present (see Marriage of Paskandy (2005) 33 Fam LR 509 at [63])
75. However, the Independent Children’s Lawyer’s proposal went further than the power conferred upon the Court by s 118(1)(c). He proposed the father be restrained from the commencement of further proceedings even though the current proceedings were not contended to be frivolous or vexatious, which is a pre-condition for the enlivenment of s 118.
76. This Court, as a superior court of record (s 21(2)), undoubtedly has an implied power to enable effective exercise of its jurisdiction (see Allesch v Maunz (2000) 203 CLR 172 at 187; Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 648; Williams v Spautz (1992) 174 CLR 509 at 518-519), but that power relates to control of proceedings already pending before the Court. There is considerable doubt about whether the Court has implied power to restrain the institution of proceedings in a broader context than is presently enabled by s 118 of the Act and the Rules (see Vlug v Poulos (1997) FLC 92-778 at 84,603-84,606).
In this instance, the mother and Independent Children’s Lawyer both conceded the current proceedings brought by the father were not frivolous or vexatious. It therefore followed that they could not rely upon s 118(1)(c) of the Act as the source of power for the order they proposed.
Any such order purportedly made pursuant to any other provision of the Act is ultra vires and I reject their submissions to the contrary. To accede to the submissions of either the mother or Independent Children’s Lawyer would necessarily emasculate s 118(1)(c) of the Act, because the pre-conditions for its operation would thereby be removed.
The Independent Children’s Lawyer asserted that, notwithstanding the absence of existent frivolous or vexatious proceedings, ss 68B(1)(a) and 68B(1)(b)(i) of the Act were foundations for the power to restrain future proceedings. It was submitted that, since the mother and child were disturbed by the thought of the father encroaching upon their lives, the commencement of more proceedings by the father in the future would only serve to disturb them further, and so an injunction precluding such proceedings would be for their “personal protection”.
I reject the argument, which suffers from three vices. First, it stretches to the point of incredulity the meaning of the phrase “personal protection” found in 68B of the Act. Second, the evidence about the fear held by the mother and child about the father would be a fragile basis upon which to find that their “personal protection” justified stifling the father’s entitlement to resort to litigation to determine the parties’ rights and obligations. Third, if one party’s asserted fear of another was a proper basis upon which to thwart future litigation under the Act there would be few cases amenable to the Court’s jurisdiction.
The mother alternatively contended s 67ZC of the Act enabled the Court to make the proposed order. That provision certainly invests the Court with wide power to make orders pertaining to the welfare of a child, but exercise of the power is not utterly unconstrained or unprincipled. I reject the submission that the power to make orders relating to a child’s welfare is “all encompassing”
The power to make orders under s 67ZC is not entirely at large and is exercised when there is some risk to a child’s welfare, not to merely promote a child’s welfare. The jurisdiction is protective, not supervisory (see AMS v AIF (1999) 199 CLR 160 at 189-190, 230-231; Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 608). If it were otherwise, the Court could conceivably make orders that parents desist from smoking, or consuming alcohol, or eating unhealthy food, because such orders would ultimately be aimed at promotion of their children’s “welfare” through preservation of their own health, and there could be no argument that orders of that sort are beyond power (see Marriage of L & T at 605).
Even when a child’s welfare is directly under threat, the power of the Court to make orders under s 67ZC is circumscribed by the constitutional context of the Act. The Court has no power to make orders beyond the constitutional purview of Part VII (see Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 403-407, 434-435, 439; Secretary, Dept of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218 at 261).
Properly construed, the proposed injunction is not an order which is made to avert some imminent risk to the child’s welfare and, consequently, may not be made in reliance upon s 67ZC of the Act.
Costs
The Independent Children’s Lawyer sought an order, over the mother’s objection, that she pay one-half of the Independent Children’s Lawyer’s costs incidental to his involvement in these proceedings.
The Court undoubtedly has power to make the costs order proposed by the Independent Children’s Lawyer (s 117(3)). It was not contended the quantum of the Independent Children’s Lawyers costs was unreasonable. Quite the contrary. The costs were very modest.
The costs were sought only from the mother because she was not legally aided in the proceedings (s 117(4)(a)) and, in view of the father’s absence, it was pointless pursuing him for his one-half share of such costs.
Nor was it contended that the mother would suffer financial hardship if she was obliged to bear those costs (s 117(4)(b)). The mother is employed and she conceded she had sufficient means to meet the order.
The mother conceded that the appointment of the Independent Children’s Lawyer by the Court, which happened long ago in April 2011, was a proper exercise of judicial discretion pursuant to s 68L of the Act and the established principles which guide the exercise of that power (see Re K (1994) FLC 92-461 at 80,773-80,776).
As would be apparent from the earlier discussion of the evidence, the parties’ history was dramatic and largely controversial. The father contested the proceedings from their commencement over two years ago until only several months ago. The involvement of the Independent Children’s Lawyer in the proceedings was worthwhile because without him the Court may have been disadvantaged in judging what orders the best interests of the child objectively required, as distinct from those urged by the parties from their self-interested perspectives (see Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 203-204).
The funding of the Independent Children’s Lawyer by a legal aid scheme would have been a highly influential factor had the Court been obliged, or even permitted, to consider it. However, the Court is now mandated to disregard that fact (s 117(5)). That statutory reform was enacted with effect from 1 January 2004 and it neutered prior countervailing authority (see PJ and NW [2005] FamCA 162 at [66]).
It must be remembered the mother did not commence these proceedings. She was the respondent and was compelled to contest the proceedings, which resulted in her ultimate vindication about the nature of the parenting orders necessary to meet the child’s best interests. In that quest she had privately engaged her own legal representatives at considerable personal cost. In the end, the Independent Children’s Lawyer was wholly supportive of her cause. They are the most salient considerations and tip the balance in the mother’s favour.
No other submissions were addressed to the factors prescribed under s 117(2A) of the Act. I am persuaded that no costs order should be made and so the costs application is dismissed.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 22 March 2013.
Associate:
Date: 22 March 2013
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