Fyfe and Bartell (No.2)

[2016] FCCA 2755

FEDERAL CIRCUIT COURT OF AUSTRALIA

FYFE & BARTELL (No.2) [2016] FCCA 2755

Catchwords:
FAMILY LAW – Costs − whether father wholly unsuccessful − where child has a meaningful relationship with the father − where best interests of the child required the issue of an unacceptable risk of sexual abuse to be decided.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 117

Cases cited:
Fyfe & Bartell [2016] FCCA 2545
M v M [1988] HCA 68, (1988) 166 CLR 69 at [25]

Applicant: MS FYFE

Respondent: MR BARTELL

File Number: MLC 5504 of 2013

Judgment of: Judge Phipps

Date of Hearing: No Oral Hearing

Date of Last Submission: 17 October 2016

Delivered at: Dandenong

Delivered on: 26 October 2016

REPRESENTATION

Solicitor for the Applicant: Mr Weerappah

Solicitors for the Applicant: Bayside Solicitors

Counsel for the Respondent: Ms Dwyer

Solicitors for the Respondent: Denise Dwyer Solicitors

ORDERS

1. That there be no order as to the costs of this proceeding.

IT IS NOTED that publication of this judgment under the pseudonym Fyfe & Bartell (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 5504 of 2013

MS FYFE

Applicant

And

MR BARTELL

Respondent

REASONS FOR JUDGMENT

1. The mother applies for an order that the father pay her costs of preparation for trial and appearances in the application in relation to the child X born (omitted) 2009.

2. On 4 October 2016 I made final orders as follows:

   1. THAT all previous orders are discharged.

   2. THAT the mother have sole parental responsibility for the child 3. X born (omitted) 2009.

   4. THAT the child live with the mother.

   5. THAT the child spend time with the father once each month supervised by a professional supervisor approved by the mother or other independent person approved by the mother.

   6. THAT otherwise all extant applications are dismissed.

   7. THAT the Independent Children’s Lawyer is discharged.

   8. THAT the applicant file and serve submissions in relation to costs within 7 days.

   9. THAT the respondent file and serve written submissions in relation to costs 7 days thereafter.

   10. THAT the question of costs be determined without further oral hearing

3. I delivered judgment on 4 October 2016.  The issue in the case is described in paragraphs [2] & [3] of the judgment; Fyfe & Bartell [2016] FCCA 2545:

   2. The child’s relationship with the father is not disputed.  The mother says that the child adores the ground the father walks on.  The observations of the family report writer and the workers at the Family Life Contact Centre confirm the child’s excellent relationship with the father.  If it were not for the risk issue the father’s proposal would be appropriate.

   3. The issue is whether the risk to the child in having unsupervised time with the father is such that it should not be ordered.  This issue arises out of the father being charged with sexual abuse offences against two-step daughters, the daughters of his previous partner.  He was found not guilty.

4. Costs are dealt with in s.117 Family Law Act 1975 (Cth):

   (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.

5. Each party filed written submissions on the question of costs.  The parties’ financial circumstances are set out in those submissions.  Their financial positions are similar.

6. In summary, the mother’s submissions argue that the father has been wholly unsuccessful.  The final order made is as proposed by the mother in relation to parental responsibility, the child living with the mother and the time the child spends with the father.  The mother’s submissions argue that the father had legal advice and so must be taken to have known what was involved.

7. As the paragraphs from the judgment set out above shows there was one issue; that is whether the risk to the child in having unsupervised time with the father was such that it should not be ordered.  This was not a simple issue demonstrated by the approach taken by the Independent Children’s Lawyer in submissions at the conclusion of the evidence.  This approach is described in paragraph [6] of the judgment

   The Independent Children’s Lawyer proposes that there be an order the parties attend a parenting orders program and the father undertake a post separation parenting course.  The Independent Children’s Lawyer did not make a recommendation about the child spending any time with the father.  The submission on behalf of the Independent Children’s Lawyer was that it depended upon the findings I make.

8. The mothers submissions refer to 2 paragraphs, [70] & [80], of the judgment:

   74. The weight of the professional evidence is against unsupervised time.  Dr S and Ms O recommended only supervised time.  Dr O’s assessment assesses the father as low risk.  In taking Dr O’s assessment into account Ms O refers to part of Dr O’s summary and conclusion “notwithstanding the apparent Low risk status it cannot be said… a person represents no risk of committing sexual offence behaviours.  Ms O notes as well that Dr O says that the results of the psychological testing contained in the report should be “viewed with caution”.

   80. Ms O is concerned about grooming behaviour by the father and his lack of understanding about inappropriate behaviour with pubescent girls.  Each of the reports considers that there is a risk of the father again engaging in sexual abuse of the child.  The assessments range from low to moderate.

9. The test applied is that set out by the High Court of Australia in M v M [1988] HCA 68, (1988) 166 CLR 69 at [25]:

   This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding.  In devising these tests the courts have endeavoured, in their efforts to protect the child‘s paramount interest, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.  To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

10. The benefit to the child of a meaningful relationship with the father was not disputed in this case.  The issue was whether the risk to the child was unacceptable and outweighed the benefit to the child of the relationship with the father.  This was a real issue, as is demonstrated by the Independent Children’s Lawyer’s position at the conclusion of the evidence.  The Independent Children’s Lawyer’s position was a reasonable one.  The case depended upon the findings made in the evidence, particularly the evidence of the expert witnesses.

11. The father’s pursuit of the orders proposed by him was reasonable. This can be tested by reference to the Independent Children’s Lawyers position. Had the father at the commencement of the hearing said he would consent to the orders proposed by the mother the Independent Children’s Lawyer might not have supported those orders being made and may have urged the Court not to make them. The child’s best interests is the paramount consideration in s.60CA Family Law Act 1975 (Cth). The child’s best interests required the resolution of the dispute about the proper balance between the benefit to the child of a meaningful relationship with the father and the risk of sexual abuse.

12. On the mother’s argument if orders were made for unsupervised time as proposed by the father the mother would be wholly unsuccessful and so should pay the father’s costs.  Approaching costs on this basis would be akin to applying the usual common law rule for civil proceedings that costs follow the event.  Costs in parenting applications under Part VII of the Family Law Act 1975 (Cth) are governed by s.117. It does not contain the common law rule.

13. There should be no order for costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 26 October 2016