Fowles and Fowles (No. 4)

[2018] FamCA 711

FAMILY COURT OF AUSTRALIA

FOWLES & FOWLES (NO. 4) [2018] FamCA 711

FAMILY LAW – CHILDREN – INTERIM PARENTING – procedure – oral application – urgent hearing sought – child’s right to be heard and consulted in accordance with the United Nations Convention on the Rights of the Child.

FAMILY LAW – CHILDREN – INTERIM PARENTING – father’s objection to firearms as the basis of his objection to child’s (15 year old) participation in school camp.

FAMILY LAW – CHILDREN – INTERIM PARENTING – ascertaining child’s best interests.

FAMILY LAW – COSTS – father to pay costs of the wife and the independent children’s lawyer.

APPLICANT: Ms Fowles

RESPONDENT: Mr Fowles

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 8587 of 2015

DATE DELIVERED: 12 September 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 10 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Sheales with Dr R Smith

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr J Salamanca

SOLICITOR FOR THE RESPONDENT:	Taussig Cherrie Fildes
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Kildea
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Victoria Legal Aid

Orders

1. The independent children’s lawyer have leave to make an oral application in the terms of paragraph 3 of Exhibit “ICL1” and otherwise be relieved from the requirement to file and serve an application in accordance with the Family Law Rules 2004 (Cth).

2. The evidence of the husband given on 10 September 2018 be transcribed.

3. The child D born … 2003 (“the child”) be at liberty to participate in the camp commencing on 19 September 2018 and for that purpose, the wife be, and is hereby, solely responsible, as between herself and the husband, for giving all such consents, permissions and authorisations to the proper officers of the child’s school and/or the camp as are necessary to enable the child to participate in all activities at the camp.

4. The Independent Children’s Lawyer be responsible for causing a copy of this Order to be served:-

   (a)       on the proper officer of M School;

   (b)       Mr N, Head of O Group … –

   such service to be effected by electronic means.

5. The husband pay a contribution to the costs of the independent children’s lawyer of this day fixed in the sum of $1,902 , such payment to be made within 14 days.

6. The husband pay a contribution to the costs of the wife this day fixed in the sum of $5,521, such payment to be made within 14 days. For the avoidance of doubt any payment made by the husband to his solicitors and applied in compliance with this paragraph of this Order be exempt from the operation of paragraph 7 of the Order made on 5 July 2018.

7. I certify that it was reasonable to engage Senior Counsel and junior counsel to attend for the wife.

8. That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

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 Fowles & Fowles (No. 4) 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 MELBOURNE

FILE NUMBER: MLC 8587 of 2015

Ms Fowles

Applicant

And

Mr Fowles

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is return date of an urgent Application in a Case filed by the husband on 22 August 2018 in which he sought a discharge of previous orders which impede his travel outside Australia. In the alternative, that he be permitted to travel to the United States of America for 10 days:-

   a)as soon as practicable or,

   b)in the alternative, from Saturday, 22 September 2018 until Monday, 8 October 2018,

   c)or in the alternative from 7 December 2018 until Thursday, 31 January 2019. 

2. The husband also sought that the parties’ child, the child (aged 15) be permitted to travel overseas with him on an unrestricted basis or alternatively during one of the periods that the husband sought to travel.  The husband sought that the wife pay the husband’s costs of and incidental to that application.

3. A relatively early return date was allocated in light of the first order sought by the husband that “all necessary dates and times be abridged to hear this matter on an urgent basis.”  In support of the application, the husband’s affirmed[1]  “I seek that this Honourable Court here this matter urgently as my mother, Ms P Fowles, is extremely unwell and I wish to travel to the United States of America as soon as practicable in order to spend time with her, given her treating doctors(sic) guarded prognosis” and “If the child is not permitted to travel to the United States with me, I fear that he may not get a second opportunity to spent(sic)  time with his grandmother.  I am concerned that it will severely impact upon him in the future.”  The husband provides an explanation as to why he did not file any medical evidence about his mother’s state of health.

   [1] Affidavit of Mr Fowles affirmed 15 August 2018 [Folio 109]

4. The child’s interests in these proceedings are represented by the independent children’s lawyer who is Mary Lonergan of Victoria Legal Aid.

5. The husband did not press his Application in a Case.  The respondent wife did not oppose an adjournment of the application.  Costs remained an issue.

6. Most court time was taken up with an oral application made by the independent children’s lawyer in relation to the child’s attendance at a forthcoming camp.  The husband opposed the child’s attendance.  The wife supported the application of the independent children’s lawyer that the child attend the camp.

7. These reasons set out the basis upon which I have acceded to the application of the independent children’s lawyer that the child be able to attend the forthcoming camp and that the husband is required to make a contribution towards the costs of the wife and the independent children’s lawyer for their attendance at court today in the sums sought by them.

Pending applications

1. It is necessary to appreciate the context within which the applications are made. Financial and parenting matters are currently outstanding and the hearing of them is bifurcated.

2. Parenting issues are to be reviewed on 11 October 2018.  The husband is currently not spending any time with the child and the family are attending upon Ms Q for therapeutic treatment.

3. Financial issues are part heard before me.  They commenced on 19 March 2018 with an estimate of five days.  Thus far, the property hearing has run for 13 days.  On 5 July 2018 it was adjourned to 1 October 2018 for a further two days.  The husband, who is the respondent, has been in the witness box for some 32 hours over 10 hearing days.  In discussion with the parties, the adjourned date has been moved to 2 October and the matter will be listed for three consecutive days. Cross examination of the husband will recommence on 2 October 2018.

4. The husband made an application in late March 2018 for his passports (Australia, United States of America and Country U) to be returned to him so that he could travel.  The husband had no particular plans to travel although said that he wanted to return to the United States temporarily.  The wife vigorously opposed the husband’s application on the basis that he had demonstrated a disregard for orders of this court and would likely not return for the purpose of the final property hearing leaving her significantly disadvantaged.  I heard submissions, reserved that decision and gave the husband liberty to apply urgently in the event that he required to travel in the meantime.  The husband’s Application in a Case is filed thus.

5. By Response to an Application in the Case filed on 6 September 2018 [Folio 110] the wife sought a raft of orders including:-

   ·Dismissal of the husband’s Application in a Case;

   ·If the court were to grant the husband leave to travel outside the Commonwealth of Australia, such travel be conditional upon the husband paying:-

   a)The husband paying $500,000 into the trust account of the wife’s solicitors;

   b)paying to the wife’s solicitors the equivalent of the amount required by Westpac Bank to discharge the mortgage over the former matrimonial home;

   c)All arrears of spousal maintenance;

   d)$1 million “being security for future lump sum spousal maintenance –

   and perfecting discovery.

   ·Discovery in relation to numerous specified persons and entities only some of which are relevant to the husband’s application to be able to travel unrestricted between Australia and the United States.

   ·That any claims of privilege by the husband with respect to any of the documents be heard and determined on the first return date of the husband’s application in a case (10 September).

Non-contentious background to the applications

1. I will set out facts which I understand are agreed or which I understand are no longer contentious.

2. As part of the child’s curriculum at M School he was enrolled and participated in specialised training during the 2017 academic year.

3. The child has been enrolled and has attended in these activities during the 2018 academic year.

4. The child enjoys the training and has selected this activity in 2019.

5. That 90 per cent of M School students at the child’s level attend a school camp in September.  At the conclusion of the hearing, I invited the independent children’s lawyer (through her counsel) to make known any further information she may receive from the school about school camps.  On the following day, the independent children’s lawyer communicated the following by email[2]:-

   I note the submissions made by my Counsel with respect to the child [D], and the school camp.  For the purposes of clarification, I have spoken to the school again.  I am advised that most Year 9 students take part in the school camp save for those who are physically unable to.  There are no Year 9 classes over the camp period.

   [2] Exhibit “ICL3” which also includes notification to all parties that unless my Chambers heard from any party by 4 PM on 11 September 2018, I would treat the contents of the email from the Independent Children's Lawyer as non-contentious in place of the assertion made at the hearing that 90 per cent of M School students attend a camp.

6. Students are expected to attend the camp.

7. The child wishes to attend the camp..

8. On 16 August 2018 at 5:17pm Mr R at M School sent an email to the husband addressed “Dear Parents, Attached please find a Parental Authority Form detailing the 2018 – Annual …camp Excursion your son, , will be attending on 19/9/18.” The final sentence of the email from Mr R read “without your confirmation of medical and special dietary information, your son will not be allowed to attend the activity.” Within 5 minutes of receipt, the husband replied to Mr R saying:-

   I strongly object to the child having anything to do with your [training] I will not approve this.[3]

   The husband’s response was copied to the independent children’s lawyer, Ms Lonergan.  At this time, the husband had solicitors on the record.

   [3]Exhibit “ICL2”

9. On 17 August 2018, the husband received notice of the proposed application by the independent children’s lawyer to facilitate the attendance of the child at the camp.  That is, by email dated 17 August 2018,[4] Ms Lonergan notified the solicitor for the husband, Mr Fildes, as follows (omitting formal and irrelevant parts): –

   As it is not clear as to the situation with regards to whether [Mr Fowles] is self represented, and you are copied into emails, I am directly writing to you. I have spoken to the school and advise that generally most year 9 students are on camp at this time of year and I assume that the child would like to go on camp with school colleagues. Please have your client reconsider his position. In the event that he does not provide his consent, I will seek that her Honour list this matter for mention and seek that consideration be given to the mother having sole parental responsibility on an interim basis for issues pertaining to school and extracurricular activities.

   [4] Exhibit “ICL2”

10. The husband’s Application in a Case filed 22 August 2018 was allocated 10 September 2018 as a hearing.  It was apparently served on the solicitors for the wife and the independent children’s lawyer on 22 or 23 August 2018.

11. By email dated 23 August 2018 the independent children’s lawyer copied to the husband’s solicitors an email to my associate which read as follows[5]: –

    Dear Associate.

    I am the ICL in this matter. 

    I note the application filed by the father returnable on 10/9/18.

    I will seek leave before Her Honour to make an oral application on the day in relation to the child the child attending on a school camp as part of his … course, which commences 19/9/18.   

    [5] Exhibit “ICL 3”

12. By correspondence dated 23 August 2018 the solicitors for the wife wrote to the solicitors for the husband putting them on notice that the client would be “strenuously opposing your client’s application” and will be seeking costs.[6]  That correspondence also sought disclosure of documents incidental to Company S’s audit in the United States of T Inc which was a further reason advanced by the husband in support of his application to travel to the United States.[7]  The wife also sought discovery of other account statements which it was said that the husband had an obligation to disclose.  The wife’s solicitors asked whether the husband would seek to rely on evidence by his father and whether evidence from one of the doctors of the husband’s mother would be called to substantiate the husband’s allegations about his mother’s health.

    [6] Exhibit “H2”

    [7] Affidavit of Mr Fowles affirmed 15 August 2018 [Folio 109] at paragraph 33

13. By email dated 31 August 2018 Mr N, Head of O Group, wrote to the mother in the following terms[8]:-

    Dear [Ms Fowles],

    Just letting you know that I received correspondence from [Mr Fowles] today declaring he would refuse to sign [D’s] [camp] form.  He asked me to inform [D] and to ask him to communicate through his lawyer should he be unhappy about this. 

    I felt this information was best to go through you rather than [D], however, given [D] has asked me to shield him from such matters where I can.  

    It might also be worth keeping in mind that boys had an assembly yesterday regarding activity selection for 2019. From what I understand, [D] is keen to maintain involvement in [the training].  Obviously, I would support whatever [D] wants to pursue but I suppose it might be worth weighing that up against the practicalities of him doing so, given the issue mentioned above? 

    Kind regards [Mr N]

    Head of [O Group]

    English and Literature Teacher.

    [8] Exhibit “W1”

14. The wife’s Response to an Application in the Case filed on 6 September 2018 was served on the solicitors for the husband at 4:51 p.m. on 6 September 2018.  The Response should have been, but was not, filed and served two clear business days prior to the hearing date.

15. By email sent at 4:19 p.m. on Friday 7 September 2018,[9] the solicitors for the husband advised the solicitors for the wife, inter alia, that:-

    Given the late service of your client’s response and the conditions sought to be imposed in relation to our client’s travel, the failure by your client to particularise her claim that our client is a “flight risk” and raising unrelated matters in her response pertaining to discovery and privilege, we will require comprehensive instructions and in turn proper submissions will need to be made before the Court.

    We propose that all applications be adjourned to 1 October 2018 when the matter is next before Bennett J, particularly in circumstances where the matter is in a busy duty list on Monday.

    […]

    If you seek to pursue your client’s response in any substantive manner on 10 September 2018, this letter will be produced to her Honour on the question of costs.

    [9] Exhibit “H1”

The hearing

1. When the proceeding started before me at 10 am the father was not present.  I was informed that the husband was in his city office and sought an adjournment of his application in the case (in relation to travelling to the United States of America).  The only argument was in relation to costs.  However, the independent children’s lawyer sought leave to make an oral application. She tendered a minute in that regard which I marked exhibit “ICL1” and directed remain on the court file. She sought, first, that “the mother have sole parental responsibility for the child in relation to schooling and educational decisions”.  In the alternative, that the child be at liberty to participate in any and all camps activities events programs matches and trainings associated with any school or extracurricular activities the child is currently, or in the future is, enrolled in.  Finally, that the child be at liberty to participate in the camp commencing 19 September 2018. 

2. Initially counsel for the husband said that his client wanted to make an oral application that the child not attend the camp but he did not persist with that course.

3. Counsel for the husband opposed the independent children’s lawyer proceeding with an oral application.  In the alternative, he sought an adjournment of the oral application.

4. On the issue of permission for the independent children’s lawyer to proceed with an oral application, as opposed to a written application, I weighed the prejudice to the father of proceeding this day against the prejudice to the child (whose interests the independent children’s lawyer represents) of not hearing the application.  Importantly, the camp departs on 19 September 2018.  If I did not hear it as sought, it would not be heard before the camp and would fail by default.

5. Counsel for the husband conceded that:-

   ·the husband had not less than three weeks’ notice of the proposed application by the independent children’s lawyer;

   ·his instructing solicitors had been trying “for weeks” to get thorough instructions from the husband in relation to his opposition to the camp;

   ·the husband had not brought any application to prevent attendance of the child at the camp and was content to merely oppose the application of the independent children’s lawyer;

   ·the father has equal shared parental responsibility and could have ascertained himself from the school any information he wanted about the camp from M School.

6. I could not identify any prejudice to the husband.  However, I was only prepared to proceed with the pressing issue of the camp and not with a re-allocation of parental responsibility between now and whenever the parenting case may be determined.

7. I granted leave to the independent children’s lawyer to proceed with the following oral application; that the child be at liberty to participate in the camp commencing 19 September 2018 and orders for service incidental thereto. I stood the matter down until 2:15 pm and directed that the husband attend court.

8. When we resumed, I granted permission for the husband to give viva voce evidence in support of his opposition to the Independent Children’s Lawyer’s application.  Whereas counsel for the husband had not been prepared to concede, and had put in issue, whether the child wanted to attend the camp, the husband conceded in the witness box that the child does wish to attend the camp.

1. The husband’s evidence was that he has always opposed the child participating in this activity and had sought a change of school on that basis.  His unchallenged evidence was that his opposition to this activity had been disregarded by the mother and M School.

2. In cross examination, he conceded having told the wife in a text words to the effect that her proposal to swap Anzac Day with Mother’s Day in 2017 “will not work for me, I have plans to march in the Anzac parade”.  The husband’s evidence was that he had meant to say in the text that he was marching “along side” or “next to” the Anzac Day procession and in order to protest for peace.

3. The husband’s evidence was that he has, and always has had, a strong philosophical objection to guns.  He stated that the child is a citizen of the United States of America, Australia and Country U and that he objects to the child identifying as a member of “the tribe of the Australian army” as he is as much Country U or American as he is Australian. 

4. I asked the husband why had he not made an application immediately on receipt by his lawyers of the email from the Independent Children’s Lawyer foreshadowing an oral application, which email was sent on the Friday, 17 August 2018.  His response was that the School sought his permission for the child to participate and that it was no business of the court. He stated “I am the father, it is my responsibility, the court has nothing to do with it” or words to like effect.

5. The husband’s evidence was that he had informed M School of his objections to the child’s enrolment and had specified that the child was “not to touch guns.”

6. The husband described having had “an idea about asking the child to write an essay of 500 words on a comparative analysis of the benefits of the three different armies (Australia, United States of America, Country U)” or words to like effect.  My impression was that the husband envisaged this as a means of making the child examine and give deeper consideration to the consequences of participating in the camp and use of firearms in our society.  However, the husband had not communicated the idea about an essay to the child, the mother, the independent children’s lawyer, the school or indeed anyone until after he commenced to give his evidence at approximately 3pm this afternoon.

7. The husband gave evidence, which was not challenged, that the child will use live ammunition on this year’s camp.

8. In summary, the husband is indignant and offended at the prospect of the child attending the camp.

9. There was no application to adduce evidence from the wife or for the wife to be cross examined.

Legal principles

1. The independent children’s lawyer seeks and the husband opposes, an interim parenting order which would enable the child to participate in the forthcoming camp. In determining whether I should make the order, the paramount consideration is the child’s best interests pursuant to s 60CA of the Family Law Act 1975 Cth (“the Act”).

2. Section 61DA of the Act provides a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents. Section 61DA is engaged whenever the court considers making a parenting order. 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 significant issues (s 65DAE).

3. The participation of the child in the camp is a matter which falls within parental responsibility.  The parents already have equal shared parental responsibility. I have declined permission for the independent children’s lawyer to make oral application for orders which extend beyond the child’s attendance at the camp commencing on 19 September 2018 so the presumption has not practical application at this stage.  The effect of me allowing the child to participate in the camp over the husband’s objection is to curtail the father’s parental responsibility. I accept Mr Salamanca’s submission that I should not do this lightly.  However, the alternative is to allow the husband to veto the child’s attendance by omission - by withholding his consent to M School to include the child in the camp.  That would be a default resolution rather than a principled determination.  On an interim basis I will make orders consistent with the child’s best interests and do so on a principled basis.

4. In Goode & Goode (2006) FLC 93-286 the Full Court mapped the legislative pathway to be followed in interim parenting cases. It is stated:-

   …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

5. The Full Court again considered the approach to be adopted in interim parenting cases in Banks & Banks (2015) FLC 93-637 (“Banks & Banks”).  At paragraphs 48 to 50 the Full Court stated:-

   …By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require a determination prior to a proper determination at a trial.  The fact such disputes are commonly dealt with in an overcrowded Court list make it even more desirable to identify with precisions which can, or should be resolved on an interim basis. 

   …there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees.  It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.  Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations.  Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors. 

6. I will proceed in accordance with the principles stated above. I will focus on the s 60CC factors that are most relevant to determining what order is in the child’s best interests.

Discussion

1. The primary considerations for what orders in the child’s best interests are:-

   ·first, to protect the child from physical or psychological harm s60CC((2)(b));  and

   ·second, to consider what benefit there is to the child in him having a meaningful relationship with each parent s60CC((2)(a)). 

   The benefit to the child of a meaningful relationship with the husband (and the wife) is something to be assessed at a final hearing and not at this interim stage.

2. The husband contends that it is contrary to the child’s best interests to expose him to guns and, in effect, legitimise the use of firearms.  The husband says that he is staunchly opposed to guns and I make no finding to the contrary.  The child’s best interests are the paramount consideration but they are not the only considerations.  I give consideration to the husband’s opposition to firearms.

3. The husband’s position is that guns pose a risk to the child’s physical safety because the boys will use live ammunition.  I accept that there is an inherent risk of physical harm when using firearms.  However, there are risks inherent in many aspects everyday life.  It is not alleged by the husband that the camp is run irresponsibly or that the students will not be adequately supervised by experts.  I am not satisfied that the risk of physical harm to the child is of a level which is unacceptable.

4. The husband’s case is that condoning and encouraging the child’s use of guns is also ideologically harmful to the child.  Again, I do not assess the risk in this regard to be unacceptably high.  The child is 15 years old.  He is a moral actor in his own right[10].  Exposure to things (including guns) which he may later in life reject is not necessarily contrary to his interests.  Firearms are but one aspect of training.  The child is in the process of being educated and there is no evidence to suggest that the activities in which the child will engage are not age-appropriate activities.

   [10] See observations of Lady Hale (as she then was) about the views of a four and a half year old child in Re D (A Child)(Abduction: Rights of Custody) [2006] UKHL 51.

5. I take into account the child’s views (s60CC(3)(a)).  Ultimately, it was conceded by the husband that the child wants to participate in the camp.  The father’s evidence was “well I wouldn’t let him eat ice-cream all day either, I don’t care what he wants” and “I don’t care if he wants to go to camp” or words to that effect.

6. I give weight to the fact that the child has been permitted to participate in this activity for two years as a basis for a reasonable expectation by the child that he will be able to participate in the “annual” camp.

7. I also surmise that the child’s career in this endeavour may be compromised if he is excluded from the tuition and experiences offered at this camp commencing on 19 September 2018.  This is based on the reference by the head of house to the child’s indicated keenness to continue in this activity needing to be weighed “against the practicalities of him doing so” (see paragraph 25 above).  I take the child’s vies into account in the context of the camp but also in the context of him having selected this as an activity for 2019.

8. This matter was brought on urgently.  In the course of the day, there was no opportunity or application to have the child’s views recorded and assessed by a family consultant.  I asked for the independent children’s lawyer to contact the child to ascertain, for certain, if the child’s expressed view is to attend this camp.  I understand that contact could not be made.  The suggestion of the independent children’s lawyer was to make my order “subject to the child’s wish to do so”.  By this stage, however, the husband had stated that he accepted that the child wants to participate in this camp.

9. Section 60B(4) of the Act incorporates as an additional object of Part VII, giving effect to the operation of the United Nations Convention on the Rights of the Child (UNCROC). Article 12 of UNCROC provides that:

   (1)States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

   (2)For this purpose, the child shall in particular be provided the opportunity to be heard in any  judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with  the procedural rules of national law.’

10. I am satisfied that the child would feel aggrieved to have his participation at camp vetoed by his father (or a judge) at the last minute without even being heard by his father or by the Court.  The father did send the child a text message last Friday night asking if the child wanted to talk to him about the camp. The child responded “why”.  There was no further communication.  That is not the level of consultation or the measure of respect that should be shown to a 15 year old and on which he can model his behaviour.  To the extent that the husband says that he has not had an opportunity to converse with the child, it is the husband (not the child) who has dictated the timing of the husband’s opposition and, it would seem, left adequate time for reasoned discussion.

11. I am satisfied that the child is of an age when his views, which are reasonably based, should be accorded significant weight.  They are not determinative but they are of significant importance.

12. I have considered the estranged nature of the child’s relationship with the husband in the context of s.60CC(3)(b) of the Act. As indicated, I do not perceive the outcome contended for by the independent children’s lawyer and the mother to, per se, impact negatively on the child’s relationship with the husband. Any escalation of the child’s rejection of the father over this issue is most likely going to be based on a perception by the child that the husband tried to get an order preventing his participation in camp without engaging the child directly. The child may interpret this as an expedient but unfair use of power by the father. We may subsequently reflect that this camp controversy was a squandered opportunity for the child and the husband to converse respectfully even if the outcome was to agree or disagree with such an exchange being facilitated by the family therapist.

13. The legislation appropriately refers to parental responsibilities rather than parental authority.  My impression from one aspect of Mr Salamanca’s submission is that, allowing the child to participate in the camp and curtailing the father’s parental responsibility, will be interpreted by the child as the husband being an impotent parent who the child does not have to invite into his day to day life.  To accede to the application will further diminish the husband as an authority figure. However, that would be a misinterpretation.  The husband cannot hope to earn the child’s respect or have the child accept his authority if he exercises it in an arbitrary or dictatorial way.  

14. I note the husband’s evidence is that he has previously voiced his opposition to the child’s participation in the camp only to be disregarded by the wife, M School and the child. I have regard to the apparently limited extent to which the husband (on his evidence) has participated in making decisions about the issue of the camp within the context of s.60CC(3)(c)(i) of the Act. If the husband was going to assert his views and participate in the decision making process, he needed to do so in a more timely manner than he has done here. For instance, as soon as he was put on notice by the independent children’s lawyer of her proposed application that “that consideration be given [by the court] to the mother having sole parental responsibility on an interim basis for issues pertaining to school and extracurricular activities” (17 August 2018), the husband could have amended his Application in a Case to seek an order preventing the child from attending the camp. That would have put the matter regularly before the court and afforded everyone an opportunity for such social science input as might have been appropriate.

15. Over and above what I have discussed, the other factors which are described as “additional considerations” under s 60CC(3) of the Act are not influential in my determination of what will promote the child’s best interests at this interim hearing stage. This is a determination made on an urgent basis where the urgency is not of the court’s making. For the avoidance of doubt, I have had serious regard to the husband’s opposition to guns and his opposition to the child being inculcated with what the husband perceives are values of the Australian army, albeit he was no more specific than referring to the army as a “tribe”.

16. I am satisfied that it is in the child’s best interests to accede to the application of the independent children’s lawyer that the child be able to participate in the camp and I will order accordingly.  The wife will be responsible for giving all necessary contents and directions to facilitate the child’s attendance.

Costs

1. The wife sought an order that the husband pay her costs thrown away this day, initially estimated at in excess of $11,000. I see no basis here for indemnity costs. Calculated in accordance with the Family Law Scale, the wife sought costs in the sum of $5,521 made up as follows:-

   $1,902 for senior counsel

   $1,902 for junior counsel

   $1,617 for one instructing solicitor (although two were present).

2. The independent children’s lawyer sought an order that the husband pay the costs of the independent children’s lawyer in the sum of $1,902 being counsel’s fees.

3. Mr Salamanca, for the husband, initially sought that costs be reserved on the basis that they should be considered in the result.  I do not accept that would be appropriate or “just”.  The costs sought are costs thrown away today and the best vantage point from which to make the necessary assessment is now.

4. Mr Salamanca’s next submission, put vigorously, was that there ought to be no order as to costs.

5. The “ordinary rule” that each party to proceedings under the Family Law Act 1975 (Cth) (“Act”) shall bear that party’s own costs derives from s 117(1) of the Act which provides:

   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.

6. Costs do not automatically follow the event or outcome, as is commonly the general rule in other civil litigation.

7. Section 117(1) is expressed to be “subject to”, inter alia, subsection (2) with the effect that costs of one party can be ordered to be paid for by another party if the court is satisfied “that there are circumstances that justify it in doing so”.

8. It is appropriate to identify the circumstances which justify a costs order being made prior to, and discretely from, a consideration of the specific factors which may affect what order (if any) is to be made. It is not necessary for there to be “exceptional” circumstances to justify an order as to costs within the meaning of s 117(2). The factors which inform the exercise of the discretion may be the same or similar to the factors in s 117(2A) albeit perhaps differently applied (see Bevan and Bevan [2013] FamCAFC 116 [89]).

9. In the present case, the circumstances by which I am  satisfied that there ought to be a departure from the principle that all parties should bear their own costs are:-

   ·the husband filed an application seeking an urgent date and then did not prosecute his application;

   ·the day was taken up by an application of the independent children’s lawyer which was supported by the wife and unsuccessfully resisted by the husband.

10. I am comfortably satisfied that the circumstances of this case justify the making of an order for costs.

11. I now turn to what, if any, order for costs ought to be made. The discretion conferred by s 117 of the Act to order costs is a wide discretion (Penfold v Penfold (1980) 144 CLR 311).

12. Section 117(2A) provides that I have regard to seven factors of which the last is “such other matters as the court considers relevant” which permits me to have regard to further circumstances. However, the need for the Court to “have regard to” the factors identified in the subsection does not mean that the Court must specifically traverse and detail each factor or make a finding of how each factor is relevant, or irrelevant, to the exercise of discretion (per Mahoney JA in Housing Commission ofNew South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378).

1. The Full Court in Brown v Brown (1998) FLC 92-822 and, in particular, the leading judgment of Kay J, held that the Court may consider just one, or more than one, of the factors under s 117(2A) when determining what (if any) order for costs ought to be made:

   In many cases there will be an outstanding feature of the case that makes an order for costs appropriate, a feature which so dominates the scene it can outweigh any of the other s 117 (2A) considerations. In those cases the Court may readily infer that the trial Judge has given appropriate consideration to the aspects of s 117(2A) but in the shadow of each of the required aspects has appropriately determined that overwhelmingly the case demands an order for costs be made.

2. The decision in Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 FLR 123 reiterates that there is no requirement that more than one factor under that subsection must be present for a costs order to be made and that there is nothing to prevent just one factor being the sole basis for an order for costs.

3. I turn now to the s117(2A) factors.

4. I accept that none of the parties can afford to incur costs of litigation unnecessarily (s117(2A)(a)).  Counsel for the husband submitted that I should have regard to monies already being paid by the husband to and for the benefit of the wife.  The most recent relevant order is the Order made on 5 July 2018.  The difficulty with that submission is that none of the monies being paid are referrable to costs incurred today and, if applied to the costs incurred by the wife for today, will deprive her of using the funds otherwise.  The husband is also seriously in arrears of his obligations to pay spousal maintenance.

5. The parents are holding these proceedings privately. The independent children’s lawyer is funded by Victoria Legal Aid (s117(2A)(b)).  Monies dedicated by Victoria Legal Aid to this case are not available to other cases.  Public funds should be conserved for legitimate public purposes.  Mr Salamanca submitted that the parents are probably contributing equally to the costs of the independent children’s lawyer.  That was not readily conceded before me.  However, on reflection, I suspect that Mr Salamanca is largely correct. My recollection is that, when the independent lawyer was first appointed, I indicated that she should be funded by the parties subject to her making regular applications for costs.  However, if the parents each contribute one half of the independent children’s lawyer’s costs for today, the wife would be incurring an expense for which I do not regard her as appropriately responsible.  The wife could seek the husband indemnify her for her contribution to the independent children’s lawyer’s costs but that is unnecessarily cumbersome.  If the wife is to be insulated from liability to contribute to the costs of the independent children’s lawyer for this hearing, the easiest way is to have the husband pay the claimed costs.  

6. I have regard to the conduct of the parties to the proceedings (s117(2A)(c)).  Mr Salamanca submitted that the independent children’s lawyer proceeded on an oral application which was based on “flimsy” evidence.  I am satisfied that at all times the husband, and those who advised him, knew the substance of the case of the independent children’s lawyer.  Any further work done by the independent children’s lawyer to perfect her application would just have incurred further costs which, in the circumstances, the husband should be relieved were not incurred.

7. The independent children’s lawyer’s case was not flimsy.  It was based on the fact that the child is a member of the group and they are expected to attend the camp, that the child wants to attend the forthcoming camp and that it is reasonable and consistent with his best interests to do so.

8. Mr Salamanca submitted that, in discussion, that I evinced an inclination to place too much weight on the husband having been unsuccessful (s117(2A)(e)).  I don’t. The husband was not “wholly unsuccessful”.  The independent children’s lawyer was not successful in getting leave to make an oral application to curtail the husband’s parental responsibility more generally.  She was permitted to proceed only on the more conservative application.

9. I must have regard to offers in writing to settle the proceedings. I have taken into account the following submissions by Mr Salamanca about correspondence sent late on Friday afternoon that the husband’s solicitors would agree to adjourn the Application and the wife’s Response thereto (see paragraph 27 above).

   a)Mr Salamanca submitted that the husband and his lawyers expected that his Application in a Case would be set down for hearing on the first day of the recommencement of the final hearing in October 2018 rather than being allocated an earlier hearing on 10 September 2018.  I do not accept that submission. If that is what the husband’s lawyers sought or expected, they should have sought orders to that effect.  Further, having been allocated an earlier return date than they (now say) they expected, he could have immediately sought it be adjourned.

   b)Mr Salamanca submitted that he wife’s response was not served within time and the husband could not know if the wife was opposing his application and, accordingly, they could not suggest any earlier than 7 September that the proceedings be adjourned.  That is clearly not correct given the correspondence from the wife sent on 23 August 2018 and referred to above (Exhibit “H2”).  Furthermore, the cross examination of the husband is proceeding at a glacial pace and the last thing anyone needs when the financial proceedings resume is the distraction of an interim application.

   c)The husband indicated through his solicitors late on Friday afternoon that he would agree to an adjournment of his application and the wife’s response thereto.  However, that was late in the day and still left the application of the independent children’s lawyer outstanding.  The latter could not be adjourned because the camp commences on 19 September 2018.

   d)There was no evidence of the husband addressing a compromise to the independent children’s lawyer.  Indeed, one of the husband’s alternatives for overseas travel with the child would have required the child to be in the United States during the camp and for the husband to be out of Australia for the dates set down for further hearing of the property case and the scheduled continuation of cross examination of him by senior counsel for the wife.

10. The matters discussed in the preceding paragraph do not constitute findings against the husband.  Nor do I have regard to them as impacting adversely on his bona fides.  Mr Salamanca’s submissions relate to the expectation of his instructing solicitors in their conduct of the husband’s case.

11. As to quantum Mr Salamanca submitted that it was not a case requiring the attendance of senior and junior counsel on behalf of the wife.  Mr Salamanca appeared without Mr North SC.  I do not accept the submission.  The wife had not accepted the husband’s offer of an adjournment and, indeed, only went so far on the day as to not oppose it.  The representation was proportionate to the issues at hand. Otherwise, Mr Salamanca made no submissions in relation to the quantum of costs claimed.

12. I consider that it is just that the husband contribute to the costs of the wife and the independent children’s lawyer in the sums sought.

13. The husband did not seek a stay for payment of costs but I will, nonetheless, order that the costs be paid by the husband within 14 days.  That will see the costs paid prior to the recommencement of the final hearing on 2 October 2018 which is appropriate and just. 

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 September 2018

Associate:

Date:  12 September 2018