FELICI & BAGINI
[2020] FamCA 111
•17 February 2020
FAMILY COURT OF AUSTRALIA
| FELICI & BAGINI | [2020] FamCA 111 |
| FAMILY LAW – CHILDREN – International Relocation – Whether child should remain in the primary care of the father in Australia or relocate to Europe to live in the primary care of the mother – Order that child live with the father – Declaration made that Australia be the habitual residence of the child – Order that the mother and father have equal shared parental responsibility for the child – Orders that child spend time with the mother in Europe and Australia – Orders that mother communicate with the child. FAMILY LAW – COSTS – Application by father seeking a costs order that the mother pay her costs of the substantive proceedings – Where the mother filed a cross claim for the costs of the substantive proceedings against the father –Applications dismissed. |
| J v C in [1969] 1 All ER at 824 Yamada & Cain [2013] FamCAFC 64 |
| Family Law Act 1975 (Cth) ss 60CC and 117 |
| APPLICANT: | Mr Felici |
| RESPONDENT: | Ms Bagini |
| FILE NUMBER: | LNC | 236 | of | 2019 |
| DATE DELIVERED: | 17 February 2020 |
| PLACE DELIVERED: | Launceston |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 17 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Higgins |
| SOLICITOR FOR THE APPLICANT: | Bishops |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
All previous parenting orders in relation to X born … 2016 (‘the child’) be and are hereby discharged.
IT IS DECLARED that Australia is the habitual residence of the child.
The child shall live with Mr Felici (‘the father’).
The father and Ms Bagini (‘the mother’) shall have equal shared parental responsibility for the child.
The child shall spend time with the mother as follows:-
a) until 1 February 2021, once a year in Italy for a period of four (4) weeks as agreed in writing between the parties. The periods of time with the mother shall be broken up into periods of up to five (5) consecutive nights with the mother then in the care of the father for one (1) night then back to the mother for up to five (5) etc (such as 5 nights with mother, 1 night with father; up to 5 nights with mother, 1 night with father; up to 5 nights with mother, 1 night with father; up to 5 nights with mother, 1 night with father; up to 3 nights with mother, 1 night with father);
b) from 1 February 2021, once a year in Italy for a period of four (4) weeks to coincide whenever possible with the Tasmanian school holiday period. The periods of time with the mother shall be broken up into periods of up to five (5) consecutive nights with the mother then in the care of the father for one (1) night then back to the mother for five (5) etc (such as 5 nights with mother, 1 night with father; 5 nights with mother, 1 night with father; 5 nights with mother, 1 night with father; 5 nights with mother, 1 night with father; 2 nights with mother, 1 night with father);
c) from 8 July 2023, once a year in Italy for a period of four (4) weeks to coincide whenever possible with the Tasmanian school holiday period on such dates as agreed in writing between the parties;
d) on such occasions when the mother is in Tasmania with the mother to provide the father with one month’s written notice as to the exact days when she will be in Tasmania and when she is proposing that the child spend time with her.
For the purpose of order 5 herein, the child’s time in Italy will not commence until there is registration of this order made by the Family Court of Australia or the making of a reciprocal mirror order in the Italian Courts.
For the purpose of order 5 herein the mother shall confirm in writing at least 30 days prior to any visit the residential address/es to where the child will be staying while in her care.
For the purpose of order 5 herein, the child is not to be absent from school for more than ten (10) consecutive days if the time is during the school term.
Until 8 July 2023, the father is to be responsible for the child’s travel between Tasmania and Italy including accompanying the child on flights and the mother is to reimburse the father for one half of the cost of economy flights for the father and the child within twenty one (21) days of the father producing the invoice/s.
From 8 July 2023, for the purpose of the child spending time with the mother in Italy, the mother shall be responsible for the child’s travel between Tasmania and Italy including accompanying the child on flights.
From 8 July 2023, for the purpose of the child spending time with the mother in Italy, the father shall be responsible for the child’s travel between Italy and Tasmania including accompanying the child on flights.
In relation to all overseas travel, the parties must on each occasion, provide to the other party, at least fourteen (14) days prior to the child leaving Australia, the following:-
a)details of the child’s flights confirming such flights are booked using the child’s Australian passport;
b)a copy of return airline tickets in the child’s name; and
c)an itinerary including the places at which the child will be staying and the addresses and, where possible, the landline telephone number of each place.
The father shall retain the child’s passport at all times apart from when the child is travelling with the mother.
Any agreed changes to the child’s travel arrangements should be made in writing and signed by both parties.
The parties shall do all such acts and sign all such documents necessary to ensure the child has an up to date Australian passport and sign all necessary travel documents.
In the event that the mother fails to sign the documentation as referred to in Order 15, within twenty one (21) days of such request being made, that this Order act as an Authority for the Australian Passport Office to proceed to process the application for a passport for the child in the absence of the mother’s signature.
For the purposes of these Orders, school holidays are defined as commencing on the day school finishes and concluding on the day before school starts in accordance with the term dates for Tasmanian Government school students prepared by the Department of Education, Tasmania.
The father be listed forthwith as the emergency contact person at the child's school and he provide a copy of these orders to the school which the child attends.
The father be permitted to provide a copy of these orders to any psychologist or other treating medical professional of the child.
The father is permitted to remove the child from Australia to travel overseas as follows:-
a)for the purpose of facilitating the child’s time with the mother pursuant to Order 5 herein;
b)until 1 February 2021, once a year for a period of four (4) weeks as agreed in writing between the parties; and
c)from 1 February 2021 onwards once a year for a period of four (4) weeks to coincide whenever possible with the Tasmanian school holiday period and ensuring the child is not to be absent from school for more than ten (10) consecutive days if the time is during the school term.
During any overseas travel, the parties shall ensure the child communicates with the other party by Skype, FaceTime or telephone on two occasions each week for up to 15 minutes on each Thursday and Sunday.
The child shall communicate with the mother by Skype, FaceTime or telephone on each Thursday and Sunday at 7.30am (Tasmanian time) with the mother to initiate the call to the child and at such other times as reasonably requested by the child.
There be leave for counsel for the father to provide a copy of the Family Report dated 11 December 2019 to the father’s Italian legal representatives in the event that the mother has not withdrawn her application for parenting orders before the Italian Courts upon the making of these Orders.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant applications are dismissed except as to costs.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS DIRECTED
The father, as soon as practicable, have the reasons and orders translated to Italian and seek to have the orders registered in Italy pursuant to the Child Protection Convention of which both Australia and Italy are signatories.
IT IS NOTED
This matter is only listed for 1 day (17 February 2020) and IT IS DIRECTED the father only be responsible for the one day setting down fee and such setting down fee is remitted and IT IS REQUESTED the Court, if possible, rebate that setting down fee to the father.
IT IS FURTHER ORDERED
Leave be given for the father to make an oral application for costs today.
Such application be dismissed.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
Felici & Baggini has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT LAUNCESTON |
FILE NUMBER: LNC 236 OF 2019
| MR FELICI |
Applicant
And
| MS BAGINI |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
Mr Felici (‘the father’) and Ms Bagini (the mother) are engaged in parenting proceedings in respect of their son, X (‘the child’), who was born in 2016 and is currently aged about three-and-a-half. This is one of those terrible proceedings that Courts and parents, and more appropriately, children, have to deal with, where the parents reside in different parts of the world, and each of the parents clearly love the child and want the child to live with them and spend time with the other parent.
In this case, the child was born in Australia, has lived effectively in Australia all of his life, and has for the last 18 months or two years been living primarily with his father. There was a period of about 18 months where the child did not have face-to-face time with the mother, although there was some telecommunication-type contact over that period. In this case, the mother has remarried, or has re-partnered, and has a daughter who was born in 2019 and is soon to celebrate her first birthday. It is in this context that the parents struggle to put in place parenting arrangements that could meet the needs of the child and their own circumstances.
The issues I need to address are fundamentally, whether the child should remain primarily in the care of the father within the State of Tasmania, or whether the child should live primarily in the care of his mother in Italy. This matter came to the Family Court from the Federal Circuit Court in the middle of 2019, and the parties requested that it be listed for final hearing in February 2020, given that the mother is living in Italy, and given the history of the matter. The Court accommodated that requested and listed the matter for hearing commencing today.
The Court ordered a family report, which was provided and released in December 2019. The mother travelled to Australia to see the child and to participate in the preparation of that family report. The mother was represented until today. Counsel for the mother attended Court today and sought leave to withdraw from the proceedings. It was clear on that submission, and on the evidence before me, that the mother knew of the proceedings, but was determined not to engage in that. As such, I am satisfied that the mother knew of the proceedings commencing today, chose not to involve herself in the proceedings, and as such, the proceedings could proceed today on an undefended basis. I have given leave in that regard.
THE EVIDENCE
The father relied upon the following documents in these proceedings:-
a)an Amended Initiating Application filed 11 February 2020;
b)his Trial Affidavit filed 11 February 2020;
c)the Affidavit of his partner, Ms B, (‘the father’s partner’) filed 11 February 2020;
d)an affidavit of Ms C filed 3 February 2020;
e)the Family Report of Ms D (‘the family consultant’) of 11 December 2019 (‘the Family Report’);
f)a recent Affidavit of Mr E filed 14 February 2020 an educator who knows the child;
g)an Affidavit by Ms F filed 13 February 2020; and
h)an Affidavit by Ms G filed 14 February 2020.
I have read and have regard to all of that material, and I have read and had regard to the case outline prepared by counsel for the father dated 13 February 2020.
BACKGROUND
The father was born in Italy in 1985, and is aged 34. The mother was born in Italy in 1990, and is aged 30. The parties commenced living together in Italy in about mid-2008, and married in 2011. The father asserts that the parties came to Tasmania in 2013, and that the parties separated in Tasmania. That is not agreed to by the mother. In 2016, the child was born. The father asserts that the relationship of the parties broke down just under two years later, in April 2018, although the mother said there was still discussion of separation.
In May of 2018, the father commenced his relationship with Ms B. In April/May 2018, the mother travelled to Italy with the child and with the father’s consent. The father went over to Italy in May 2018 to meet the mother and the child. The parties and the child returned to Tasmania in June 2018. The mother asserted that it was in July 2018 that the parties separated. It is neither here nor there in terms of the parenting arrangements for this child as to the date of separation. The mother says that in July 2018 she commenced a relationship with her current partner, and in August 2018 the mother returned to live in Italy. It was a period of about 15 months between when the mother last saw the child and then saw the child during the course of preparation for this hearing.
The child has lived with the father since that time, and he has had the full‑time care of the child. In April 2019, the father commenced proceedings in the Federal Circuit Court. These proceedings were subsequently transferred to the Family Court. In May 2019, the mother commenced proceedings in Italy. In June 2019, interim orders were made retaining the current circumstances and restraining the mother from taking further steps in the Italian Court proceedings. The matter came before the Family Court in 2019 and was listed for trial at this time.
In November 2019, the mother came to Tasmania and spent some time, generally the day visit with the child, and the Family Report was prepared. The mother filed an application for permission to return the child to Italy, pending the outcome of the hearing. She did not proceed with that application. The mother has, since the Family Report came out, to all intends and purposes, abandoned the Australian proceedings. Having read the Family Report which was not favourable to her cause, that position is perhaps understandable.
THE LAW AS TO PARENTING
The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The House of Lords in J v C in [1969] 1 All ER at page 824 Lord MacDermott said when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration said the following:-[1]
3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases. The parental rights however, remain, qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbin, L.J. in re: O’Harra [1900] 2 I.R. at page 240
4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance. For all I know that may have been true in some cases containing dicta to that effect. But I think a growing experience has shown that it is not always so and that serious harm even in young children may, in occasion, be caused by such a change. I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion. But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.
[1] Page 824.
These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.
The Full Court, comprising of Murphy & McMillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’. Their Honours went on to reject that argument. The basis for that rejection was set out from paragraph 19 onwards.
The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest. Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per say. The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] Fam CAFC 16 and said:-
25. In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].
(Bold emphasis added).
26. Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:
It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …
and more broadly, at [75]:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …
The Full Court in Yamada & Cain (supra) went on to conclude:-
27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
I will endeavour to apply the principles of law to the facts.
THE SECTION 60CC FACTORS
I have had regard to the factors outlined in s 60CC factors of the Act in the light of the facts and findings in respect of each of the determinations made by me as to the various parenting outcomes.
Section 60CC(2)(a) the benefit of the children having a meaningful relationship with both of the child’s parents;
There is no doubt that there is a benefit in the child maintaining and having a meaningful relationship with both his mother and his father. It is not in doubt that the child loves both his mother and father, and that both mother and father deeply love this child. The family consultant noted in her report that the child had a close and warm relationship with the father, and further, that the child was excited to see his mother, and responded to her with delight. The family consultant observed that the child missed the mother, and responded well to his mother. That says a lot about the parenting of the father, and perhaps his partner, that they have not alienated this child, or endeavoured to alienate this child from the mother, and that is a significant feature of this case.
It is also noted that the father proposes to take the child to Italy when he is able to, and when it is safe to do so. That is also a significant feature.
Section 60CC(2)(b) the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
The family consultant noted in her report that there was evidence of mutual family violence. The father denied the specific allegations, save and except that he agreed that on one occasion the parties had an argument during which he slapped the mother, in circumstances as set out in that Family Report. The father also raised issues with the family consultant about violence from the mother. There is no evidence the child has been exposed to this violence. The family consultant raised that this may have been a cultural issue, although violence can never be explained through culture, in my view.
On the evidence before me, I am satisfied that the child is not at risk of neglect, family violence or abuse in either of the care of the mother or the father, and it is unlikely that the child will be exposed to that into the future. There was some family violence, but it is situational violence; whilst there is no level of violence, which is good, what occurred is of a very low level and has not occurred since separation.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is aged three, and any views would not be relevant. The only views that become clear is that this child loves both his mother and father, to which I have earlier alluded.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
It is accepted that from his birth in 2016 until August 2018, the child had a strong attachment bond to both of his parents, and he grew up in a childhood where both parents were available to him. The mother left Tasmania and the household in August 2018 to return to Italy. The mother and the child did not have face-to-face time until November 2019, and this was at a time when the mother was in Tasmania for just short of two weeks. The mother returned to Italy on 8 December 2019, and the child has not had face-to-face contact with the mother since that time.
The family consultant observed some anxiety in the child spending time with the mother, which was consistent with the circumstances in which the child had found himself. I note the contents of the family consultant report at paragraph 100:-
From observations during this assessment, it is clear that [the child] once had a significant attachment to his mother. This attachment however appears to have been damaged by [the mother’s] sudden sustained absence. The aberrant behaviours [the child] displayed at home and at Day Care are likely to be due to attachment difficulties following the departure of his primary attachment figure. It appears however that X [the child] is progressing well in repairing this broken bond, and has most likely established another primary attachment to his father, and a secondary attachment to [the father’s partner].
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii) to communicate with the child;
The father has fully participated in all aspects of the child’s life, including decision-making, and has undertaken the difficult task of parenting the child in the absence of the mother. At the time which she left she was a significant person in that child’s life.
The father sought assistance from the psychologist from the H Service, and this has had a positive effect on the child. The mother found herself in a relationship and then became pregnant. She has limited funds, so the circumstances in which she found herself are, of course, to a large degree, of her own making, but it is not as if blame ought to attach to that. People make decisions in life, and these decisions have impacted on the child. I make no criticism of the mother in that regard.
Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The father made no submissions.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There would be a significant change to the child’s circumstances if I made an order that he return to Italy. His reality has been in the care of first his mother and father, and then his father. A change at this time, particularly to a different relationship and to separating from his father would be, in my view, a profound change to the child who has not had physical contact with his mother for some time. The father is the child’s primary carer, and has been his primary carer since at least August of 2018. It was equal shared care prior to that time.
Prior to that time, the child attended day care three days a week, and continues to do so. I have had regard to the evidence in that regard. I accept the submission that a change in residence would be another major change in this child’s life. The child has not spent extended time with his mother since 2018, and I note the comments of the family consultant that it would be both frightening and re-traumatising.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
I accept that there are practical difficulties and expense, particularly to this family of relatively modest means. Neither party has proposed that they move closer to the child. Each of the parties seek that the child reside with them, so those are the only options that are available to the Court.
I accept the evidence of the father as to the cost of travel and the impact of travel on the child. This means that it cannot be significant and substantial time or more, and certainly not equal time. The travel, particularly as the child would need to travel with a parent, would need to be thought out carefully and would be relatively costly.
Section 60CC(3)(f) the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I am satisfied that the father has the capacity to care for the child, including his emotional needs, and has met those for the whole of the child’s life so far.
There is some concern about the mother’s capacity to meet the emotional needs of the child, however I do not share that concern to the extent that it is submitted to me by counsel for the father.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
I am satisfied the father is a committed and loving parent to this child, and works full-time as well as caring for the child. There is no evidence of any other abuses such as alcohol or substance abuse, and I have dealt with the question of family violence earlier in these reasons.
There is little evidence of the mother’s lifestyle in Italy, but we do know that the mother is a person of modest means.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The father has taken his responsibility of the care of the child seriously. The mother has in some respects taken a different approach to that of the father.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family; and
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
As to family violence, I refer to the comments I have made earlier. There are no orders in place.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The main issue in these proceedings is the international relocation, and hopefully these reasons will resolve those.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;
There is another case on foot in Italy. It is not clear whether the mother is complying with the order of the Federal Circuit Court and desisting with that proceeding or not. It is a factor to which I have had regard. I accept that the child is Australian born, but has dual Australian/Italian citizenship. It is important to the father, on his evidence, that this connection to both the Australian and the Italian culture continue.
SUMMARY AND DISCUSSION
What do I make of this? The child was in the care of both parents until August 2018, and has been in the care of the father since that time. The father is open to taking the child to Italy to spend time with the mother when it is safe to do so, and in fact, wishes to take the child to Italy as soon as possible. He has undertaken, with his partner, the role of caring for this child. The mother’s case is that the arrangements for the child were not intended to be long-term. That may well have been the case, but there is no reason the mother could not have come to Tasmania to argue the case and stayed here, pending the outcome.
I have read all of the material and placed significant weight on the recommendations of the family consultant set out in paragraphs 94 to 108 of the Family Report:-
94.[The child] is a little boy of three years 4 months. He lived the first two years of his life with both his mother and his father. It appears he was breast fed by his mother until he was almost two years of age, indicating a warm and specific bond between them was established. [The child] commenced three days Daycare at seven months of age moving to four days per week at 12 months and then five days per week at two years of age.
95.When [the child] turned two years of age his mother left for Italy and he did not physically see her again until she returned in November 2019, 16 months later. Accounts from [The father] and [the father’s partner] indicate that [the child] did not cope well with his mother’s absence from his life. Reports from [the child’s] [Day Care Centre], record that [the child] presented there with some “challenging and difficult behaviours” around the time of his parents’ separation.
96.It is not surprising that [the child] struggled to cope with what was a significant childhood trauma. He lost the physical presence of the one of the most significant adults in his life during a key stage of his development. The one adult from whom he was able to glean considerable physical comfort and sustenance on a regular and daily basis. It is likely that [the child’s] loss may have been mitigated to some extent by the regular FaceTime conferences he was able to have with his mother. At [the child’s] young age however, it may have been hard for him to discriminate between seeing his mother on a screen and seeing any person on a screen. It would have been difficult for [the child] to gain significant reassurance and comfort from this medium and it may have even upset him further.
97.[The child’s] continued attendance at the same Day Care Centre he had attended from seven months of age is likely to have greatly assisted him to cope with the changes that suddenly occurred in his home life. This was one place where the routines and faces most likely remained relatively stable. The ongoing advice and assistance [the Day Care Centre’s] staff offered [the father] is likely to have considerably assisted [the father] to parent [the child] through this challenging time of [the child’s] life.
98.It appears their advice to seek assistance from a psychologist and from H Service once [the child’s] behaviours escalated to “emotional outbreaks and difficult to control behaviours” had a positive effect on [the child]. Recent reports from the H Service and the psychologist, Ms J indicate that [the child] has made encouraging progress. Ms J reports that [the child] has made “excellent progress in reducing his negative attention seeking behaviours” and H Service teacher, Ms G reports, “I have seen a definite progress in [the child’s] ability to self-regulate, and in his ability to follow routines and class instructions.”
99.It appears [the father] has sought advice and assistance in managing [the child’s] responses to his changed life circumstances, and [the father] has appropriately responded to the advice. H Service report [the father] and Ms B have been committed to ensuring that [the child] receives the support that he needs in order to reach his full potential”. [The Day Care Centre’s] Director, Ms F reports “During the past 12 months [the child] has been in a stable family home environment with both [the father] and [the father’s partner], whom he has formed strong emotional attachments with. His emotional behaviour has progressed and settled immensely.”
100.From observations during this assessment, it is clear that [the child] once had a significant attachment to his mother. This attachment however appears to have been damaged by [the mother’s] sudden sustained absence. The aberrant behaviours [the child] displayed at home and at Day Care are likely to be due to attachment difficulties following the departure of his primary attachment figure. It appears however that [the child] is progressing well in repairing this broken bond, and has most likely established another primary attachment to his father, and a secondary attachment to [the father’s partner].
101.[The father] expressed concern that [the mother’s] reappearance in [the child’s] life will unsettle him once more may have some validity, and there was some evidence that this has occurred. It is likely however that [the child’s] unsettled state will be of a shorter duration than [the child’s] initial trauma after his mother left because this time [the child] will be remaining with his primary attachment figure, his father.
102.As [the child] grows in maturity, his ability to transition from parent to parent will develop and he will eventually be able to remember that if he spends time with one parent the other parent will not disappear permanently, but remain ready for his return. Until such time however it is likely that [the child] will struggle if he is called upon to leave the presence of his father, for a protracted period. Psychologist, Ms J states, “[the child] will continue to require stability and predictability in the home and child care centre environment to ensure the gains he has made over the past five months is ongoing.”
103.[The mother’s] request to take [the child] back with her Italy for two months prior to the Court determination regarding parenting orders, is a possible indicator that she lacks a defined child focus or a clear understanding of [the child’s] developmental needs. Further that she may have a limited awareness of the changes [the child] has had to endure over the past 16 months, and the adjustments he has had to make just to cope.
104.From a child-focused perspective, [the child] will find spending extended periods away from his father both frightening and re-traumatizing. [The child] however needs to renew his relationship with his mother, and to develop a strong awareness of his heritage.
105.[The father] impressed as being keen to keep [the child’s] Italian speaking abilities sharp and was interested in looking at ways where he can continue to speak Italian to [the child] in the home in a manner that does not interfere with his English language acquisition. Further [the father] expressed a readiness for [the child] to visit Italy every year to spend time with his mother; he stated a commitment to [the child] continuing to develop a positive relationship with his mother. Further he stated a firm desire for [the mother] to visit [the child] in Tasmania whenever she is able.
106.This is seen as important, but maybe while [the child] is young trips to Italy may need to occur with [the father] travelling to Italy with [the child], and for [the child] to spend short periods of time with his mother and her family in each of the weeks that they remain in Italy, rather than a several week block with his mother, with no return to his father.
107.Whilst family violence appears to have occurred in this relationship, it may have been of a mutual nature and whilst inappropriate and unacceptable in our culture, may be more acceptable in the Italian. It is not considered to have of been of such a nature that there has been a lasting impact on the co-parenting alliance. [The mother] was observed sitting with [the father] in the Registry waiting area by choice, and stated that she did not fear him, or have a concern regarding her safety around him. It will be important for [the child’s] well-being that such behaviour does not occur in the context of his parent’s new relationships, as exposure to family violence can have significant and long lasting effects on children’s well-being and development.
108.At the present time and given the history of the family circumstances it would seem not to be in [the child’s] best interests to change his current primary living arrangements. It is seen as also important that arrangements be put in place for [the child] to spend regular and significant periods with his mother of an increasing duration.
I accept the recommendations that the father and mother should have equal shared parental responsibility of the child. Given the evidence before me as it currently stands, I am satisfied that the child should continue to live with his father, and continue to live with his father in Australia, that when it is safe to do so, the child should be able to travel to Italy and spend time with the mother, although block week time as sought by the mother, given the long separation, is clearly not in the best interests of the child. It needs to be broken up and developed as the child grows older.
The orders that are proposed by the father address the matters raised by the family consultant, and I am, in those circumstances, inclined to make those orders as being in the best interests of the child.
THE LAW AS TO COSTS
Costs orders generally
The power to make costs orders are set out in s 117 of the Family Law Act 1975 (Cth) (‘the Act’), which relevantly provides:-
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
In Penfold v Penfold (1980) FLC 90-800 the majority of the High Court expressed the general rule that s 117(1) is not paramount to s 117(2) of the Act. A court must make a finding that there are circumstances justifying the making of a costs order before proceeding to make the orders.
There is no guidance in the legislation between the two sub sections nor any additional special onus on the applicant for an order as to costs.
It is necessary to consider the facts in the light of the provisions set out in s 117(2A) of the Act. While the list in s 117(2A) gives rise to a wide range of factors there is nowhere in s 117(2A) that says any one factor provides a hierarchy in relation to the other factors, it is a matter of weight that is accorded to each of the relevant factors in the Court’s discretion (see Medlon and Medlon (No.6) (Indemnity Costs) (2015) FLC 93-664 per Strickland J). One factor may be enough. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & Ors [2005] FamCA 158, the Full Court held:-
41. Nowhere in subsection 2(a) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
As such the Court has a broad discretion in determining costs.
It is of value to repeat what I have said in earlier judgments that the Court needs to consider the difference between the various types of unquantified costs orders available under the Act. There are many variations of types of costs orders, but they generally fall into three types:-
i)Party and party costs - which are calculated having regard to the schedule of costs under the Family Law Rules 2004 (Cth);
j)Lawyer and client costs – these are essentially indemnity costs, with the onus upon the costs applicant to satisfy the taxing authority that such costs are on balance fair, reasonable and proportionate; and
k)Indemnity costs - these are essentially lawyer and client costs, with the onus upon the costs respondent to satisfy the taxing authority that such costs are on balance not fair and reasonable and not on balance proportionate, that is the reversal of the onus of proof.
It should be borne in mind that costs orders are restorative and not punitive, and costs cannot exceed the amount actually incurred. They are an indemnity or partial indemnity. In Cachia v Hanes (1994) 179 CLR 403 the plurality of the High Court, comprising Mason CJ, Brennan, Deane, Dawson and McHugh JJ observed:-
Whilst the restricted basis upon which party and party costs are awarded may be debated as a matter of policy, it is to be borne in mind that party and party costs have never been regarded as a total indemnity to a successful litigant for costs incurred, let alone total recompense for work done and time lost. Putting to one side the question posed by the relatively rare exception of a solicitor acting in person, there is no inequality involved: all litigants are treated in the same manner. And if only litigants in person were recompensed for lost time and trouble, there would be real inequality between litigants in person and litigants who were represented, many of whom would have suffered considerable loss of time and trouble in addition to incurring professional costs. The partial indemnity which the law allows represents a compromise between the absence of any provision for costs (which prevails as a matter of policy in some jurisdictions) and full recompense. In these days of burgeoning costs, the risk of which is a real disincentive to litigation, the proper compromise is a matter of both difficulty and concern.
COSTS SECTION 117(2A) OF THE ACT
Section 117(2A) of the Act sets out the factors I have to consider. Firstly, there are the financial circumstances of each of the parties.
Section 117(2A)(a) the financial circumstances of each of the parties to the proceedings;
The father has a property in Tasmania, but it is a very modest property with a small amount of equity. He has some superannuation accumulated over the last few years. He has a modest income, and has the need to support himself and the child. It is not clear whether he supports his partner.
The mother, on the other hand, was earning about $250 per week, and has modest superannuation. There is no evidence of other property owned by her, and she had a child last year who was less than one year old at present. I take it that her circumstances are equally, if not more modest, than that of the father.
Section 117(2A)(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
Neither party is, as far as I am aware, in receipt of Legal Aid.
Section 117(2A)(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
The crux of the arguments in respect of both costs applications is the lateness in withdrawal. It seems to me that the father is saying that the application for the interim order ought to have been abandoned much earlier, and if there was an abandonment, which there seems to be in relation to the subsequent proceedings, that should have taken place much earlier.
These, as I said earlier, are fraught proceedings. They are hard proceedings. Each of the parties had a view to give, and the whole thrust of the legislation, in my view, was to not give rise to punishing a party for exercising their views. It is not the punishment that is sought, but the late withdrawal. My concern with this costs application, modest though it be, is that it may have the impact of making it more difficult for the mother to see the child.
Section 117(2A)(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
This is not a relevant consideration in these proceedings.
Section 117(2A)(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
This is not a relevant consideration in these proceedings.
Section 117(2A)(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
This is not a relevant consideration in these proceedings.
Section 117(2A)(g) such other matters as the court considers relevant
Having regard to all of the facts and circumstances, I am not inclined to make an order for costs in either scenario. Accordingly, I dismiss the costs applications, and I note the matter is only listed for one day, and direct that the father only be responsible for one day hearing fee, and I remit that day’s hearing fee, and request that the Court, if possible, rebate that sum to the father. I have certified for counsel.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 17 February 2020.
Associate:
Date: 26 February 2020
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Costs
-
Jurisdiction
-
Remedies
-
Procedural Fairness
0
5
4