Garnet and Karsten
[2015] FCCA 3639
•31 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GARNET & KARSTEN | [2015] FCCA 3639 |
| Catchwords: FAMILY LAW – Final parenting –– where mother seeks an immediate relocation – with whom children shall live with prior to relocation if the relocation is to be delayed – future care arrangements – children’s wishes – children’s best interests –– absence of effective communication between parents – where matter has proceeded to final hearing without a family report – costs application by Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 60CC(2A), 61DA, 65DA(5), 65DAA, 69ZN, 117, pt. VII Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Other articles cited: |
| Applicant: | MR GARNET |
| Respondent: | MS KARSTEN |
| File Number: | PAC 5204 of 2011 |
| Judgment of: | Judge Harman |
| Hearing dates: | 12-13 February 2015, 30- 31 March 2015 |
| Date of Last Submission: | 30 March 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 31 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Shearman |
| Solicitors for the Applicant: | Gonzalez & Co |
| Counsel for the Respondent: | Mr Schroder |
| Solicitors for the Respondent: | Benetatos White |
| Counsel for the Independent Children’s Lawyer: | Mr Weaver |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
The mother and father shall have equal shared parental responsibility for the children, [X] born 2001 and [Y] born 2009, except in relation to schooling.
The children shall live with the mother except when they live with the father.
The children may relocate with the mother to NSW Region 1 from the second half of the end of first term NSW school holidays 2015.
Irrespective of any other Order the children are to spend time with the father for the first half of the New South Wales school holidays 2015.
The mother shall have sole responsibility for the enrolment of the children at school in Region 1.
IT IS NOTED that this enrolment responsibility vested with the mother does not affect any other aspect of the parents’ equal shared parental authority in relation to education issues.
The mother shall notify the father of the school at which the children are enrolled. The father shall be entitled to receive directly from the school all information and notices in relation to the children’s education and progress and to participate in all aspects of their education including attending on events, sports carnivals, concert and award assemblies at which parents ordinarily attend, and upon such parent/teacher events as he arranges.
The children shall live with the father as follows:
(a)Until he relocates his own residence to Region 1:
(i)During each of the April and September/October NSW school holiday periods from the morning of the first Saturday to the morning of the Saturday two weeks later;
(ii)During each of the June/July NSW school holiday periods from the morning of the first Saturday to the morning of the Monday of the third week if the children are enrolled in a School, and for one half of such holiday time if the children are enrolled in a State Public School or High School;
(iii)For the second half of the NSW December/January school holiday period commencing in 2015 and each alternate year thereafter and for the first half of the NSW December/January school holiday period in 2016 and each alternate year thereafter;
(iv)Every fourth weekend during school terms if the father exercises that time in Brisbane from Friday after school until Monday before school, or if in Sydney from Saturday morning until Sunday evening provided the father pays for the costs of air transport for the children.
(b)Upon the father relocating his residence to the Region 1:
(i)For one half of the children’s school holidays alternating first half/second half, in odd year/even year schedule;
(ii)Always on Father’s Day a minimum of from 6:00pm the day before Father’s Day until 6:00pm Father’s Day (and the mother shall have the children always living with her a minimum of from 6:00pm the day before Mother’s Day until 6:00pm Mother’s Day);
(iii)During school terms from Thursday after school until Monday before school each alternate weekend.
(c)The parents have liberal and flexible telephone communication with the children and for these purposes the mother and father shall each keep the other parent advised of their contact telephone number. The father have liberal and flexible email, Skype or FaceTime, or such other video communication, with the children prior to moving his residence to Region 1.
For the purposes of the father’s time with the children if that is to occur in Sydney the father shall book and pay for the children’s flights to and from Town A airport. Not less than two weeks prior to the children’s flights the father must provide to the mother, by email, a copy of the children’s flight itinerary indicating the airport the children will be flying from and to, the airline, the times of the flight and the flight numbers. The mother shall ensure that the children are taken to the relevant airport and checked in, with sufficient time for the children to catch the flights booked by the father. The father shall ensure that the children are collected at Sydney airport when the children’s flight lands. On the return flight the father shall ensure that the children are taken to Sydney airport and checked in, with sufficient time for the children to catch the flights booked by the father. The mother shall ensure that the children are collected at the relevant airport when the children’s flight lands. If the children are not accompanied by an adult on any flights, they must be booked as unaccompanied minors.
For other changeover purposes where it does not occur from before or after school the father shall collect the children from the mother’s home at the commencement and return the children to the mother’s home at the conclusion of his time with the children.
The father shall, prior to relocating to the Region 1, be entitled to spend time with the children during school terms for weekend periods up to and including each alternate weekend provided (save as otherwise provided by the above Orders) that such time shall occur by the father travelling to and spending time with the children in the Region 1 area and in which case the father shall be responsible for his own costs of transportation, accommodation and sustenance.
Each parent shall do all things, sign all documents and give all consents authorities and instructions as may be necessary to ensure that [X] is recorded on all official documents (such as school enrolment forms, licenses, etc.) and referred to and known at his school and other extra-curricular activities by his full name [X], and not otherwise.
Grant leave to the Independent Children’s Lawyer to seek an Order for contribution for costs as against each party.
Pursuant to section 117(4) of the Family Law Act 1975, dismiss the Application for Costs.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
Pursuant to S.65DA(2) and S.62B, 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.
IT IS NOTED that publication of this judgment under the pseudonym Garnet & Karsten is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5204 of 2011
| MR GARNET |
Applicant
And
| MS KARSTEN |
Respondent
REASONS FOR JUDGMENT
The children
These are proceedings relating to parenting arrangements for two children, [X], born 2001 and [Y], born 2009.
The parties to the proceedings are the parents of these boys, their father Mr Garnet (the Applicant) and their mother Ms Karsten (the Respondent).
Throughout the proceedings, [X] has been referred to, alternately, as both [X] or [X]. That is a curious aspect of the evidence but not something which dramatically impacts upon the determination of these proceedings.
It is clear that [X]’s name is registered on his birth certificate as [X]. From 2010 until sometime in 2014, the parties agree that [X] was known principally, at his behest, by his middle name, [X]. Since some time in 2014, [X] has been known for some purposes, primarily whilst in the mother’s care, by his birth name of [X], and has been known for other purposes, primarily whilst in the care of the father, by his middle name of [X]. As indicated, nothing of great moment turns upon that reality, save to highlight one aspect of the differences in parenting and parenting styles of these parents.
The other aspect of the evidence relating to [X] arises from that which might generally be seen as wisdom “coming from the mouths of babes”. When interviewed by a Family Consultant, [X] provided the most eloquent and sophisticated description of the circumstances in which he sees himself, describing that he felt that he was, as it were, the filling in the sandwich of his parents, indicating that he felt like “Mum’s one kind of bread and Dad’s another kind of bread”.
That statement, made by [X] to the Family Consultant upon whom the parties and the children attended, is consistent with statements suggested to have been made by [X] to his parents and each of them.
[X] is not a young child. [X] will shortly celebrate his 14th birthday. [Y] is much younger, having only recently turned six. The difference in age between the children is not as significant as the temperamental differences between the children. Those differences have assumed some importance in the evidence of the parties. That is not to suggest that there are difficulties in the relationship these children enjoy with each other, beyond what might be expected as usual sibling difficulties. The differences between the boys have been the basis for some discussion by the parties of whether different arrangements might apply for each of these children. One thing these children clearly have in common is intelligence.
The parties each describe [X] as a somewhat shy and sensitive child. He is certainly anything but outgoing, either socially or physically. He is described as a child who, by and large, askews physical activity. That is no criticism of [X]. It is simply a reflection of his unique character and spirit.
Each of the parties claim that [X] is more like them than the other parent. On any cursory view of the evidence, [X]’s character reflects that of Ms Karsten.
Young [Y] has been somewhat subsumed in the evidence by discussion of [X] as well as other issues. [Y] is a young man who is experiencing some difficulties at present. That is not to seek to label him or to suggest that he suffers from any incapacity or disability, but purely to acknowledge that his needs require specific address. [Y] is very dear to each of his parents.
Issues with respect to [Y] arise from two aspects of the evidence. Firstly, the evidence of the Family Consultant, to which I shall turn shortly, suggesting that certain behaviours of [Y] were observed that caused the Family Consultant some concern during her brief observations of him. It is suggested that there may be some issue regarding his emotional or intellectual development by reference to his chronological age.
Secondly, the mother suggests – and I place it no higher than Ms Karsten’s observation or opinion – that [Y] suffers from and has, for some little time suffered from what the mother describes as “separation anxiety” when separated from her. Since November 2013, although not consistently, there have been difficulties with [Y] leaving the mother’s care and transitioning into the father’s care. In November 2013, there was something of a stand-off between the parties when [Y] initially refused to leave the mother’s care and then, having left her care, returned and hid behind her.
I will return to those issues in a discussion of the evidence.
What is clear with respect to these children, is that the parents are now in significant dispute and conflict as a consequence of Ms Karsten having formed, in mid-2014, the desire and intent to relocate herself and the children from the Region 2 region of Sydney to Town B. As will be apparent from a discussion of the history of the proceedings, to which I will turn shortly, that has been the precipitating event for the Initiating Application filed in these proceedings and that which has followed thereafter.
History of proceedings
This matter does not have a lengthy history before this Court. That is, by and of itself, unique in light of resource difficulties presently experienced by the Registry.
The proceedings were commenced by an Initiating Application filed by Mr Garnet on 13 June 2014. The matter has reached hearing and been concluded in a period of about nine months in total. Whilst that has, no doubt, felt like a very long time for the parents and these children, it is but a fraction of the usual delay families regrettably endure.
The proceedings first came before the Court on 8 July 2014. That date was allocated by a Registrar in Chambers following an Application for abridgment of time. The abridgment was sought on the basis of concerns then held by Mr Garnet that Ms Karsten was in the process, not immediately but in the near future, of relocating the children from the Sydney area to Town B. That concern was realised and proved well founded by the time the proceedings first came before the Court.
On 8 July 2014, there was no appearance by or on behalf of Ms Karsten. There was evidence before the Court which established personal service of the documents upon Ms Karsten, including an email from Ms Karsten addressed to the father and which was tendered. That email, authored by the mother, corroborated the receipt of Mr Garnet’s Application and supporting documents.
What was not made clear to the Court at that time, however, was that the children were then with their mother in Town B, not having permanently relocated, but for a period of one weeks’ holiday. That much is only gleaned from the trial Affidavit filed by Mr Garnet.
As Ms Karsten did not appear on 8 July, the proceedings were adjourned for a short period to 11 July. An Order was made, on an undefended basis, Ms Karsten having clearly been served some few weeks earlier, that the children’s primary place of residence not be changed to a place more than 50 kilometres from Town C, New South Wales, a township in the north-western part of Sydney. Orders were also made which required that Ms Karsten appear before the Court in person on 11 July 2014, and that the children both be brought to the Court and delivered to the Child Minding Service of the Court.
Ms Karsten did appear on the adjourned return date of the proceedings. Ms Karsten complied in every regard with the Orders that had been made by the Court on 8 July. Ms Karsten indicated clearly, that she had relocated, or was in the process of relocating, at least herself, to Town B. As a consequence, a number of Orders and directions were made including:
a)The proceedings were adjourned to 28 August 2014 for interim hearing;
b)An Independent Children’s Lawyer was appointed;
c)The parties were directed to attend a Child Inclusive Child Dispute Conference scheduled on 22 August.
Orders were also made which provided that the children, having been returned to the Sydney area, would remain living in the Sydney area and would stay with their father from 13 July 2014 until the adjourned return date of the proceedings, subject to an Order that both children would spend time with their mother at such times as the mother was able to be in Sydney, with certain further Orders as to notice.
The mother complains in her evidence – as to which the father is silent and thus I have no reason to doubt the mother’s evidence and accept it on its face – that she did not then, for a period of five weeks, spend time with the children on a face-to-face basis, and notwithstanding that, she had both given notice of her intent to be in Sydney, and had, in fact, travelled to Sydney for the purpose of having the children in her care.
When the proceedings came before the Court on 28 August 2014, the parties and their children had participated in the Child Inclusive Child Dispute Conference. The father was legally represented, the mother was not. An Independent Children’s Lawyer appeared for the first occasion since their appointment on 11 July 2014.
The matter was expedited and listed for hearing on 12 and 13 February 2015 and to continue until completion. Trial directions were made and a number of interim Orders made, by consent, to govern the children’s care arrangements during the adjournment.
It must be noted that prior to the commencement of these proceedings, the parties had entered into Consent Orders which had regulated the children’s care arrangements. Those Orders were made by a Registrar in Chambers on 14 November 2011. Those Orders provided that the parents would have equal shared parental responsibility for the children and that the children would spend equal time with their parents in a week-about arrangement, with changeovers to occur at 8am at or outside of the school attended by the eldest child, [X]. The Consent Orders also included financial Orders. Financial issues generally have assumed some significance in these proceedings.
As a consequence of interim Orders made on 28 August 2014, the children have continued, during the adjourned period, to live in the week-about arrangement provided by the earlier Consent Orders. The children have spent the week that they are in their father’s care at the home of the father. In the week that the children are in the care of their mother, Ms Karsten has travelled from Town B to Sydney and has stayed at the home of one or other of a number of friends, and with the mother often sleeping on couches or mattresses on the floor, and the children doing the same.
When the matter came on for hearing 12 February 2015, the matter could not be reached. The matter was stood over to the second day of hearing with a view to commencing that day. The proceedings did, in fact, commence on that day. The matter was not completed however. The proceedings were adjourned on a part-heard basis. It was necessary for the date originally fixed for the resumption of the hearing to be vacated and moved backwards by some weeks as the Court was advised that the Family Consultant, who was required for cross‑examination, was not available on the allocated date, (they being on annual leave and unable to be contacted). The proceedings then returned to the Court on 30 March 2015 and the second day of hearing was completed. Judgment is delivered the following day.
Lest there should be future controversy with respect to the Orders made by the Court and the reasons with respect to same, I make clear that ex tempore reasons are delivered today, the day following completion of the trial, as there is some urgency in doing so. Whilst it may be preferable that reasons be delivered at leisure and with the opportunity of proofing, amending and editing those reasons, that luxury is simply not available. The workload of the Court is such that, with pending duty lists and circuits, it would be impossible to return to this matter in anything under three months. This family cannot wait that long.
I also make clear that I am perfectly satisfied, in my own mind, that I have understood the evidence of the parties, and that the evidence is clear in my mind and able to be addressed by reference to relevant legal principle without feeling rushed or, in any way, disadvantaged. If it were otherwise, the Judgment would be delayed.
If Judgment were reserved, the parties would be left for a period of months without finality of outcome. That has some particular relevance in light of the proposals of the parties and, particularly, in light of the evidence of Ms Karsten that she is living in Town B and dividing her life, as it were, between Town B and Sydney. If that were the only consideration, it would not be sufficient to warrant any particular course of action by the Court.
However, I accept the evidence of Ms Karsten that the arrangements which are presently in place:
a)Are disadvantageous or potentially so to the children. As Ms Karsten has indicated in her evidence, the children are growing tired of sleeping at different houses each alternate week whilst in their mother’s care, and staying at the home of friends and sleeping on couches or the floor; and,
b)Ms Karsten is not, and in all probability will not be, in a position to continue that arrangement, and thus any further delay in determination of the proceedings will likely significantly interfere in the capacity of these children to spend time with their mother.
It should also be noted that in the material that has been considered, which I will enumerate shortly, a Family Report is not included. The parties have attended a Child Inclusive Child Dispute Conference. The Memo from that Conference has been relied upon in the proceedings, and its author has been available for cross-examination as would be apparent from the above discussion.
The Child Inclusive Memo had certainly recommended that if the matter were to proceed to hearing, that it may be desirable to prepare a full Family Report. That has not occurred with the consent of the parties, obtained at the time that the matter was listed for hearing, and due to difficulties in resources and timeliness of determination of the proceedings.
When the matter was listed for trial, 28 August 2014, I had raised with each of the parties, the father being legally represented, the mother not, as well as with the Independent Children’s Lawyer, whether there was consent to the matter proceeding to hearing without a full Family Report, but relying solely upon the Child Inclusive Memo. Consent was provided by all. To the extent that any issue has arisen – and I make clear no Application for adjournment of the hearing to enable the preparation of a Report has been made – those issues or misgivings as to the absence of the Report, primarily impact upon the case of Mr Garnet, the Applicant. However, Mr Garnet was legally represented at the time that the concession was made, and has been legally represented thereafter and throughout.
If a Family Report had been Ordered on 28 August 2014, it would not have been possible to list the matter for trial. The Court’s protocol, at least in this Registry, would require that the Report be prepared and returned and released to the parties before the matter would be brought back and, if still unresolved, hearing time allocated.
As at 28 August 2014, if a Family Report had been ordered, it would not likely have been completed until April-May 2015, i.e. one to two months hence. If the matter then returned following the release of that Report then, on the state of the list as it is presently known, hearing dates could not have been allocated. There are no dates left in 2015. They were all allocated by the end of February 2015. There is no 2016 diary yet prepared and accordingly, the best that could have been done for these parties, their children and their children’s best interests, would have been to allocate the matter to a callover and, upon production of the 2016 diary, allocate hearing dates. That would have produced a delay in determination of the issues in this case of at least 12 months and, in all reality, 18 months or more.
During all of that time, the arrangements as to which Ms Karsten has given evidence of their unsatisfactory nature, would have continued or, more probably, would have broken down, with the effect that these children’s relationship with one or other parent would have been significantly impacted. These litigants and these children deserve better.
It is on that basis that a full Family Report has not been ordered. An Independent Children’s Lawyer has been appointed to assist in ensuring that all relevant material which would impact upon the determination of the proceedings, determination of the children’s best interests, and fashioning Orders which would best meet those best interests are made. It is no substitute for ensuring that the evidence is complete. However, I am satisfied that the evidence is adequate and does not lead to injustice as regards either party nor the children and the determination of their best interests.
I make clear that if I had any concern that the matter could not have properly proceeded, or that justice could not have been done to both parties and the best interests of these children without a full Family Report, then a Report would have been ordered. The reality is that a child inclusive process involves a full day of appointments with both adults and the children. The only minor difference between the two processes is that a Family Report may have also involved observation and assessment of the children with each parent and a more detailed Report.
To some limited extent, observation has occurred as part of the Child Inclusive Memo process, but not as fully as might have occurred through a full Family Report. However, Family Reports, are routinely prepared on the basis of interviews completed within one day. Accordingly, there is little, if any, process difference between that which has occurred as part of the Child Inclusive Conference and that which would have occurred as part of a Family Report.
The two are, in all other respects, essentially identical, although the document produced at the conclusion of the Child Inclusive Conference is a much briefer summary than the more detailed and considered Family Report, and is also absent recommendations by the Family Consultant. I am not concerned that the absence of observation creates any difficulty for the Court.
There is no issue in these proceedings, although certain aspects of the evidence have sought to explore such issues, that these children enjoy an excellent relationship with each of their parents. There is no issue in these proceedings, although some aspects have been ventilated in cross-examination, that each of these parents is a capable and abundantly capable parent. Notwithstanding that, whilst the parties have their own reservations in that regard, objectively there is no evidence which would suggest to the contrary.
Thus, the absence of observation troubles me little, as clearly the arrangements that the parties have practised for some little time and the concessions that are made in their evidence, would obviate against the necessity of that evidence being before the Court. The absence of recommendations by the Family Consultant does not cause me such concern as to believe that the parties or either of them have been denied due process, or that the integrity of the process is in any way impacted.
The recommendations of a Family Consultant are not binding upon the Court. That is not to suggest that they are readily dismissed, or that they are not important or treated with the respect they deserve. However, the recommendations in this matter, involving a relocation of the children from Sydney to Town B, would, in all probability, have added little to the determination of the proceedings.
It may have provided support for one parent or the other. It may have suggested that the determination of arrangements is a matter for the Court. One will never know. But the parties have each been able to run and conduct their case, I am satisfied, without prejudice in the absence of such recommendations. It is for those reasons that the matter has proceeded absent such a Report.
I am conscious that the determination of a relocation issue is a significant determination. Relocation cases are, however, parenting proceedings under Part VII of the Family Law Act 1975 (Cth) and nothing more. They are not a special class or category of case. They are simply a parenting case that presents certain difficulties, principally that the stakes involved with regard to the time that children can spend with their parents and each of them, are high.
That is very much made clear by this case, wherein the parties have, for some few years now, practised a shared and equally care arrangement as regards these children. Clearly, if the parties live some significant distance apart, as they presently do and will do in the future, at least for the next 12 months or so, that shared care arrangement will need to change. It is simply not practical.
Some input from the Family Consultant about the impact of that change would have been desirable, but one must conduct this litigation within the context of resources and prejudice to the parties which would flow not only from the absence of that evidence but from the delay which would follow. Indeed, in procuring that evidence, significant delay would have occurred.
As I have already made clear, if I had been of the view that the matter could not be properly conducted and due process afforded to the parties and, importantly, a proper assessment made of the children’s best interests as the paramount consideration, the delay would have been undesirable but necessary. I was not so satisfied and the parties’ consent has ameliorated any residual concern that I have may have held.
Material considered
In dealing with the proceedings, I have read and considered each of the following documents.
In the case of Mr Garnet, I have read and considered:
a)His Initiating Application filed 13 June 2014;
b)An amended Initiating Application had been prepared and served but was not filed. It has however, been tendered in Ms Karsten’s case and marked as an exhibit;
c)A Minute of Order has also been tendered in the father’s case at the opening thereof and is marked as exhibit F1;
d)I have received a Case Outline document on behalf of the father and have also received, read and considered his Affidavit of evidence-in-chief sworn or affirmed 23 January 2015 and filed the same day.
In the case of Ms Karsten, I have read and considered:
a)Her amended Response, filed 2 February 2015;
b)Her trial Affidavit, sworn or affirmed 26 January 2015 and filed 2 February 2015;
c)Ms Karsten has also relied upon an Affidavit of a Mr P, sworn or affirmed 20 January 2015 and filed 23 January 2015.
Mr P is the father of a child, [A], who is suggested in the evidence, particularly that of Mr Garnet, to be the closest and possibly only close friend of [X]. Mr P was not required for cross-examination and I accept his evidence on its face, his evidence being plausible and internally consistent.
I had also received a Case Outline document in the mother’s case.
A Case Outline document has been tendered by the Independent Children’s Lawyer, which I have also considered.
The Child Inclusive Child Dispute Conference Memo, 22 August 2014, forms part of the evidence before me, it being marked exhibit C1.
A number of the other exhibits have also come in to evidence and, for the sake of completeness, they comprise:
a)Exhibit M1, the mother’s amended Minute of Order;
b)Exhibit M2, the amended Initiating Application which has been served by the father but not filed or relied upon by the father;
c)Exhibit M3, certain documents with respect to Mr Garnet’s tax affairs;
d)Exhibit M4, certain documents with respect to the affairs of a company, Company A Pty Ltd; and,
e)Exhibit F1, the Minute of Orders tendered in the father’s case.
Each of the documents enumerated above has been read and considered in their totality, together with the cross-examination of the parties and the Family Consultant, and submissions put by Counsel for each of the parties and the Independent Children’s Lawyer. To that end, I do not propose to discuss the totality of evidence or set it out within these reasons. The evidence considered is set out within a transcript of the proceedings and those documents.
I will, however, touch upon certain portions of the evidence, particularly arising from the cross-examination of the parties, and by reference to significant issues which have arisen in the proceedings. By doing so, I make clear that reference to those portions of the evidence is illustrative only and is not intended to suggest that it is the totality of evidence taken into account.
In these proceedings, there are less disputed facts than in many. There are, however, disputed facts. I do not propose to consider the evidence with respect to the disputed areas of controversy unless it is directly relevant to the determination that must be made and, thus, I do not propose to make findings of fact with respect to matters that are not directly relevant to the determination of the controversy between these parties.
I will turn to a discussion of the evidence shortly.
Whilst these proceedings have reached hearing quickly, (although I have no doubt whatsoever that the parties, and particularly Ms Karsten, would consider the delay of nine months from the institution of proceedings to their completion, something verging on an eternity), such expedition of proceedings is now, like the dinosaurs, a thing of the past. The delays which are inherent in any proceedings before this Registry of the Court have, in the last 12 months, doubled, if not tripled. That is highly undesirable.
For these parties, litigants living in a first world country with what one would expect would be a best practice system of justice, it is simply inexplicable that such delays could be permitted. However, permitted they are. The Court, with its present workload, is unable to allocate hearing dates to any matter which presently requires them as there are simply no dates. The Court’s work is listed at over listing ratios of three to six hundred per cent, and thus the rate of matters which are not reached is rapidly increasing.
As a consequence of delay, the number of interim Applications that are necessary, or deemed so by litigants, is also exponentially increasing, thus causing duty weeks to now contain upwards of 150 matters per week. All of that workload simply means that litigants cannot have their day in Court in anything that could possibly be described as a timely fashion. I have, for some time, held the view that timeliness in justice requires that matters are heard within the time and using the amount of time necessary to do justice between the parties.
What would have been ideal for these parties, would have been for this matter to reach a hearing within a space of weeks. The parties were clear in their positions. The parties were both able to put their case together rapidly and to conduct their affairs with that degree of expedition. The Court could not. Indeed, the ability of these parties to prepare for a timely hearing is now somewhat irrelevant.
If this matter had commenced this year and had come before the Court for the first occasion today, a Family Report could not be prepared until 2016. If the matter then returned, hearing dates would not likely be allocated until 2018, a delay of over three years. All of that, arising within a system that is intended to, and suggested to properly and adequately prioritise children’s best interests as the paramount consideration and, particularly, although thankfully not in this case, protect the interests of litigants and children the subject of family violence.
Thankfully, this is one of the very few, incredibly rare matters before the Court in which issues of family violence do not arise. Matters which involve such allegation and raise issues as to the protection of children, or cases in which children are not seeing a parent at all, are currently delayed for an extended period. Indeed, by reference to the youngest of these two children, [Y], that delay, if it had applied in this case, would mean that he would have increased in age by at least 50 per cent before his interests could be properly determined by the Court.
In the context of Ms Karsten’s evidence, it would mean that she would be spending close to three years “couch surfing” at the home of friends, purely so she is able to see and spend time with the children. That ignores the reality of how unsettling such arrangements might be for these children. It is ironic, in that context, that the International Convention on the Rights of the Child[1] in its totality, is incorporated within the Act, when such delays, by and of themselves, obviate against any realistic suggestion the children’s best interests are or could be prioritised, let alone treated as paramount.
[1] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
Chronology of events
The Independent Children’s Lawyer has provided a chronology of events within their Case Outline document and I propose to adopt and incorporate that chronology herein. The parties have also provided chronologies of events. I do not seek to suggest that the Independent Children’s Lawyer’s drafting of a chronology is superior to that of the parties. It is, however, concise, erudite and focused upon issues which are either agreed between the parties or specifically relevant to the issues in dispute between the parties.
| Date | Event | Reference |
| 1961 | The father is born and currently aged 53. | Affidavit of Ms Karsten filed 26 January 2015 at paragraph 1 (M1.1) |
| 1969 | The mother is born and currently aged 45. | |
| 2000 | [X] is born and currently aged 13 years 9 months. | M1.3 |
| 2009 | [Y] is born and currently aged 5 years. | M1.3 |
| 4-Nov-11 | Final parenting orders made by consent, including that: 1. The parties have equal shared parental responsibility for the children; 2. The children spend equal time with each parent; 3. The children attend School 1; 4. Changeover to occur at the School 1. | |
| From 4-Nov-11 to around Jun-14 (approx. 2.5 years) | The parties comply with the orders made by consent on 4 November 2011. | |
| 13-Jun-14 | The father files an Initiating Application seeking interim orders restraining the mother changing the children’s school or residence. | |
| 8-Jul-14 | Harman J makes orders listing the matter for interim hearing on Friday 11 July 2014. The father is present. No appearance for the respondent. Harman J orders the mother appear before the Federal Circuit Court at 10.30am on 11 July 2014 and that if she fails to appear a warrant may issue for her arrest and/or the matter may proceed on an undefended basis. | |
| 11-Jul-14 | Matter listed for interim hearing before Harman J. The father and mother both appear. Harman J adjourns the interim hearing until 10.30am on 28 August 2014 and directs the parties to attend a Child Inclusive Conference with a Family Consultant for Memorandum to the Court. Further, Harman J orders the mother to file a Response and any affidavits she intends to rely on and an ICL was appointed. | |
| 28-Aug-14 | Interim parenting orders made by consent that: - 1. Order 4 made 11 July 2014 is discharged; 2. The children shall continue spending equal time with each parent; 3. [X] to continue to attend School 1; 4. Order 3 made 4 November 2011 is discharged (changeover). Further, the matter is listed for final hearing on 12 & 13 February 2015. | |
| Current | The children live with each parent for equal time. [X] continues to attend School 1 in Region 2. The father lives at Suburb T, Region 2 It is unclear where the mother lives, given that she cares for [X] each alternate week while he attends school in Sydney as the mother’s evidence is that she is living in Town B. | Interim Orders made 28 July 2014 Initiating Application filed 13 June 2014 at page 3 M1.68 |
Parties’ proposals
As the High Court of Australia has made clear in U & U [2002] FLC 93-112, the starting point for any inquiry must be a consideration of that which the parties propose. The parties’ proposals, by the commencement of the hearing, had changed somewhat and, in the case of Mr Garnet, significantly from that which they had sought in their respective Applications and Responses.
At the opening of his case, Mr Garnet tendered a Minute of Order, exhibit F1, which significantly changed the parameters of dispute. Mr Garnet proposes that the parties have equal shared parental responsibility for the children and that, until the completion of term 4 2015, the parties continue to practise an equal time arrangement on a week‑about basis, provided, however, that the mother resides within 50 kilometres of the Sydney metropolitan area.
During closing submissions, it was made clear on behalf of the father, that should the mother continue to return to Sydney each alternate week, that this would suffice, although it was not considered the most desirable outcome for the children.
In the event that the mother did not return to live within that radius of Sydney, then it was proposed by the father that the children would live with him and would spend time with their mother for 10 day blocks during each school holiday period, and for other times subject to the mother being available and travelling to Sydney to spend weekend time with the children.
Importantly, the Minute of Order tendered by the father at the opening of his case proposed at Order 7 as follows, that:
The said children be permitted to relocate to the Town B area from the conclusion of term 4 2015.
On that basis, the case became less of a determination of whether the children would relocate, as to whether they would relocate now in March-April 2015 or in November-December 2015, and with two consequent issues for determination, namely:
a)The arrangements that would apply dependent upon which parent the children primarily resided with, if there was a primacy of care, until their relocation to Town B; and,
b)What arrangements would then apply for the children in the event that Mr Garnet remained living in Sydney or, as his evidence unfolded, he fulfilled his intent to dispose of his business, amend his business arrangements and also relocate himself to the Town B area.
That was a most significant and dramatic change in position. It is not put in those terms to suggest any criticism of Mr Garnet, indeed, quite the converse. Mr Garnet, in the first questions put to him during cross-examination, conceded that his position had changed responsive to the express views of the children, and particularly [X]. I should make clear that I propose to refer to [X] by that name – his birth and registered name – throughout these reasons. That is not to buy into the controversy between the parents as to the preferability of use of his first or middle name.
When an inquiry was put to Mr Garnet in the witness box as to why the move would then be postponed and not occur forthwith, Mr Garnet responded to the effect that his main concern in [X] relocating immediately was that [X] had a deep friendship with[A]. [A], it is to be remembered, is the child of Mr P, a witness in the mother’s case. Mr Garnet indicated further that he did not know whether [X] had considered the relocation in terms of losing this friendship, or whether he was simply trying to fit in with everyone’s wishes.
Mr Garnet was concerned that if [X] moved immediately, this would cause a dislocation in the friendship, and it having been the most important and only significant friendship he had held in the last four years. It was also indicated that [X] had good friendships with a number of paternal cousins in the Brisbane area, approximately two hours north of Town B and, if the move occurred, particularly with Mr Garnet also relocating, that this may assist [X] in facilitating new friendships.
Those responses, other than the fear for the loss of the relationship with [A], would not suggest any immediate impediment, although that was further explored and I will come to it shortly.
The mother for her part has proposed, since her engagement in the proceedings, that the children would immediately relocate with her to the Region 1. The mother proposes that the father would then spend time with the children, principally during school holidays, by the children travelling down to see their father at different times, or by the father coming up to see the children during school terms. The mother proposes that each fourth weekend during school terms, time might be exercised by the father in the Brisbane area where he has family and can be readily accommodated at a minimum of cost.
It should be noted that in his trial Affidavit, Mr Garnet had indicated that if the children were to remain residing with him, pending the completion of the present school year, that he would propose that the mother have time with the children for two weekends in each school term and that he would pay for the children’s travel costs to and from the Town B area, travelling by air between Sydney and Town B, or the nearest available airport. The father further proposed that the children spend time with the mother on any additional weekends that she proposed and was available to travel to Sydney, (see paragraph 86 of the father’s Affidavit).
The parties have some degree of parity as to their proposals for school holiday time with the other parent if the parents are living any distance apart, particularly during the period until the end of the present school year, at which time Mr Garnet on his evidence has indicated a strong intent and desire, although not certainty, to relocate.
I do not put Mr Garnet’s evidence in those terms to suggest that Mr Garnet is disingenuous in the position that he has come to and advanced to the Court. He has been clear in his evidence that he would be more than willing to relocate, but a condition precedent to doing so would be for him to dispose of or make other arrangements for the business which he operates - the business, the conduct and income of which has been a matter of real controversy.
What is clear on the evidence between these parties, and as to which there is no dispute whatsoever, is that a past business had “run aground”, as it were, and as a consequence Mr Garnet had, some years ago, been declared bankrupt. He is now discharged.
The net effects of that bankruptcy, however, have had some long lasting impact upon these parties emotionally, if not otherwise, and some time was spent in cross‑examination of Mr Garnet dealing with the financial sequelae of that arrangement, and particularly transactions which occurred between the parties to seek to quarantine certain assets from bankruptcy, and subsequent Orders for property adjustment made between the parties.
No wrongdoing is implied or suggested with respect to the parties as regards those arrangements or suggested “quarantining” of assets. However, consequences of a financial nature did follow, and which have been of some particular significance in the aetiology of Ms Karsten’s proposal to now move. Again, they will be touched upon when relevant and at the appropriate time.
In closing submissions, Counsel for each of the parties and the Independent Children’s Lawyer eruditely and expertly put their client’s case before the Court. As indicated, the issues are far more limited than had been apprehended at the time that the matter was listed. The parties and, importantly, those instructed by them, including their Counsel, are to be congratulated for the manner in which the proceedings have been conducted.
The matter has been prepared in a timely fashion, regrettably, one of the few instances in this Registry wherein documents have been filed in anything resembling the time period that has been directed, and certainly in sufficient time such that no issue or concern as to due process has been raised by either party. Counsel for each of the parties has conducted their client’s affairs admirably and appropriately. They have put questions in cross-examination which have been necessary and relevant to areas that have required exploration.
The legal representatives for the parties and the Independent Children’s Lawyer have, without making specific reference thereto, ensured that the conduct of their case and the conduct of their client’s affairs has discharged their obligations both under section 69ZN of the Act (the principles governing the conduct of parenting proceedings) and under the appropriate Bar Rules. It is all too common for cross‑examination to stray into areas of little, if any, relevance to the determination that the Court is asked to make, and for points to be laboured for no apparent purpose other than that the question can be asked.
That has been entirely absent from this case and Counsel for the parties have the Court’s great thanks. Indeed, they should have the thanks of their clients for that erudition.
During submissions, issue was raised as to a potential for psychological harm to the children, and in particular [X], of a continuation of conflict between these parents or, on one possible interpretation of the evidence, a continuation of the present unsatisfactory arrangements for the week-about care of the children arising from the mother’s relocation and thus, biweekly returns to Sydney.
Such a typology was resisted by Counsel for the father and, I accept, appropriately so. This is not a case in which there is any issue of risk, unacceptable or otherwise. There is certainly no suggestion of risk arising from the children’s exposure to abuse, neglect or family violence as the Act defines those terms or, at least, abuse and family violence. That is not a criticism of Counsel for the Independent Children’s Lawyer for placing their submission before the Court. I am simply not satisfied that the evidence would support a finding to that extent.
Certainly these children have, in all probability, and I accept and so find, have been impacted by both the arrangements that the parents have put into place for them but, more importantly, the method of communicating between the parents or failing to communicate with each other. They are matters that will be dealt with as part of the discussion of issues.
The evidence of the parties during cross-examination has cast some light upon certain issues. The parties separated when these children were relatively young. The parties commenced their relationship in 1996 and separated on a final basis in or about September 2010. There is some controversy as to the exact timing of the separation, but that deposed by each party is within the same general period and nothing turns upon the difference. Accordingly, at the time that these parties separated, [X] was approaching his tenth birthday, and young [Y] was about 18 months of age.
The parties are clear and agreed in their evidence, that since their separation from each other, they have practiced a shared care arrangement. That initially operated by the children spending four nights and three days with their father, which included each weekend, and spending four days and three nights with their mother.
Ms Karsten suggests that a significant influence upon that arrangement, at least from the perspective of Mr Garnet, came about through both:
a)Mr Garnet’s involvement in a number of father’s support networks; and,
b)Financial considerations, particularly relating to the rate of payment of child support.
Whilst certainly the mother’s evidence might suggest a connection between the two, it is not a matter that I need turn my attention to. A finding one way or the other would not assist the determination. It is simply how it has been. Determination of the issue would have some potential relevance to the issues of communication and problem solving between these parties, but I can deal with those issues absent a finding in accordance with Ms Karsten allegation. That is not to suggest she is doubted, purely that I need not take that path.
The parties then, in 2012 or 2013 – the latter or earlier part of each respectively – changed their arrangement to move to a week-about arrangement. There has been some toing and froing with respect to that arrangement, particularly regarding the reservation of what has been referred to in the evidence as “special” weekends for [X], where he would spend time with one parent absent his brother [Y].
As has already been alluded to, there are some tensions between these children who are very different in their manner and nature. [X] is clearly the more sensitive or bookish child, whereas young [Y] is far more outgoing, suggested at times to strike and annoy his brother. There is no evidence that suggests a problem in their relationship, however, and I have some confidence in finding that this is so as neither party seeks to suggest that the children’s interests would be advanced by their separation from each other on anything other than a temporary basis.
The week-about arrangement persists to the present with one significant exception, being the period following 11 July 2014, when for five weeks the children were in the father’s care, albeit, for one of those weeks, consistent with the Orders that had been made. The children should have been in the care of their mother, she having given the notice required and having returned to Sydney for that purpose, for at least two of those five weeks.
That is particularly curious as Mr Garnet is clear in his criticism of the mother that she did not let him have the children on Father’s Day, notwithstanding that it fell within the week that was otherwise her time with the children. Ms Karsten gives some little evidence in relation to that issue and attempts to negotiate arrangements and the like. Irrespective, each has been somewhat precious, as it were, with adherence to Orders at different times.
What is clear is that the parties, in attempting to resolve issues between themselves, engage in plentiful correspondence. I refer to it specifically as “correspondence” rather than “communication” as I intend to touch upon that very issue shortly. What is clear, in fact, corroborated as part of a parenting plan entered into between the parties on 12 December 2012, exhibit H1 to the father’s Affidavit, is that the parties do not communicate with each other, other than by email or text.
The parties had included within their mediated parenting plan:
In case of emergency, parents will call each other. Other communication will be via email or text. Ms Karsten and Mr Garnet will keep communications respectful, child focused and simple. They will refrain from speaking on each other’s behalf, using negative words or blame.
The parenting plan also includes an agreement that the parties would say hello to each other at changeovers, that being a specific complaint that Ms Karsten has raised that when the parties were present at the same time, particularly at 8 am on a Monday morning outside [X]’s school, that the father would not acknowledge or speak to her. She was concerned that this created real upset for her and, more importantly, the children.
The parties have attended a number of family dispute resolution sessions. They would appear to have been principally focused upon financial issues between them, particularly payment of the children’s school fees, a most vexed issue and point of contention. What is clear is that the parties have negotiated a Limited Child Support Agreement which operated, it would seem, for a period of about a year wherein Mr Garnet paid all of the children’s school fees.
At the time that the agreement was entered into, [Y] was not yet at school. The Limited Child Support Agreement was to operate for three years. After 12 months the parties had returned to mediation and a new agreement was negotiated. The father gives evidence that he instigated that mediation as he simply could not afford to continue to meet his obligations under the Child Support Agreement. Whether that is so or not I need not determine.
The parties negotiated a further agreement whereby they would pay one half of the fees each. That arrangement appeared to operate for all of 2013. However, the father then gives evidence that he ceased paying at the end of that year, particularly as the mother had enrolled [Y] for a number of days per week in a preschool or preparatory class at the same school attended by his elder brother, and without consultation with or consent of Mr Garnet. Thus, all payments ceased.
Payments resumed in mid-2014. Indeed, Orders were made in July and August, with the consent of the parties, regarding the payment of those fees. The Order was made as a parenting Order to which the parties consented. The Orders were made to ameliorate the dispute between the parties, and in light of the financial pressures which each had raised at that time. It is a matter for the parties to now resolve those issues, irrespective of the schools the children may attend in the future, and through appropriate avenues. They are child support issues.
The schooling of young [X] commenced with home schooling for some years. He then commenced at a School 1. It is suggested by both parties that he has had some difficulty settling into that school, at least socially. That is a particular theme of the evidence of Mr Garnet who suggests that [X] does not make friends easily, and has taken some significant period at that school to overcome bullying and other behaviours by other students, and to make the one close friend he has, his friend [A].
I do not propose, for one moment, to give the impression that [X] is an awkward child. He is clearly a delightful and sensitive young man, who has the benefit of two capable and confident parents, even though they are not able to agree with each other on many things of significance. They do not appear to consult with each other about many things.
In the Child Dispute Conference, [X] had talked about his schooling and, in particular, his perceptions of himself within that environment. It is worth exploring those comments. [X] had confirmed that he had been home schooled for kindergarten and up and until year 3, and that when he commenced at school he believed that he was one of the dumbest children, but that he was now one of the smartest. He said that he had friends at school.
Clearly, whilst it may have taken him some time to make them, clearly he has made some progress. But he did indicate that there were children who did not want to be his friend. He explained that he was trying to progress his relationships, although some children called him names. [X] stated that if he started at a new school, he perceived that he could have a new start. He went on to indicate that he knew he made lots of mistakes at School 1 and would not be a “total weirdo and come off as annoying” at School 2, the school the mother proposes to enrol him in at Town B. He continued:
He said that it was “thanks to Mum, who showed [him] to look in past experiences” to learn how to do things differently in the future.
[X] then went on to describe Town B in what has been typified in the father’s case as an “idealised” fashion, describing it as a “wonderful place and a perfect environment”. I do not wish to be pejorative to the general populous of Town B. I accept that is a wonderful place in all probability. Whether it is a perfect environment or not, is far too subjective to comment upon. There is certainly a degree of idealisation by [X] of Town B as compared to Sydney. However, that may be true for him and may be true by reference to his past, less than positive experiences.
[X] does make clear, in the last paragraph of the reportage regarding his interview with the Family Consultant, that he was not particularly fond of Sydney and described that it was not his type of environment and did not wish to remain here. If one reads the two in combination it may give some explanation to the degree of idealising that appears to occur in his description of Town B, or it may be that the two sit comfortably together even if not connected.
There is the negative view that he does not like Sydney and does not wish to be here as well as the positive, albeit potentially idealised or at least hyperbolic description of Town B. Then comes [X]’s articulate description, sophisticated in fact, that he feels like a sandwich, his mum one kind of bread, his dad another. He indicates if he had to choose, he would choose his mother in that circumstance, specifically connected therewith in that paragraph of the memo:
Because [his] conscious tells [him] to go with Mum.
He had indicated earlier that one of the reasons he enjoyed Town B and had such a view of it, was that he and his mother are alike spiritually. He indicated that there were nice beaches. That is an issue of great controversy as the father suggests that upon having attended a holiday with his mother to Town B in 2013, he had returned with a number of complaints including that he was required to attend the beach on a daily basis and he did not like it.
The father gives examples of times when he has taken both children to the beach, and whilst [Y] would play happily on the sand and in the water, that [X] sits away from all of that. He gives a further example of having paid for surfing lessons at (beach omitted) for [X], and [X] having withdrawn from them, having determined it was not for him.
[X] gives a clear indication that he is aware of his mother’s views and attitudes towards moving to Town B and the ending of her relationship with [X]’s father. He indicates with respect to his mother, that she had wanted to live in Town B for more than 15 years and ever since the divorce she realises she is free. Ms Karsten is criticised for exploring her emotions and attitudes with young [X]. I am not critical of her for doing so. It is unrealistic to expect that parents in separated families would not share their hopes, dreams and aspirations or indeed their feelings regarding having left the relationship and how they now feel with their children.
To do so may well be perceived by Mr Garnet, as seeking to influence the child or of being derogatory of him. One might well interpret from Mr Garnet’s perspective, that for Ms Karsten to suggest that she realises she is free might suggest that she perceived some degree of servitude in her marriage. That may be a valid interpretation from Mr Garnet’s perspective.
However, these children have two parents who have separated. They are fully aware that their parents are separated. They are fully aware that their parents are involved in Court proceedings. They have a lawyer representing their interests in those proceedings whom, thankfully, they have met (unlike so many cases involving children of [X]’s age, when it would appear that the child is not considered worthy of meeting, at least by those who represent their interests). The children have also attended a Child Inclusive Conference. They know what is going on and they are not, particularly [X], unintelligent children.
Parents in intact families share their views and feelings. Indeed, potentially far more so than separated parents. They argue and squabble with each other in front of their children. That is something which, with few exceptions, these parents have not done. They have been, by and large, child focused and shielded these children from their conflict and the negative detritus of their separation.
There is nothing offensive or inappropriate in Ms Karsten sharing with her nearly 14 year old son that she has, since prior to his birth, had a desire to move to a particular area and that she feels better within herself since the termination of the relationship. Indeed, that is potentially connected with evidence given by Ms Karsten, during her cross‑examination, wherein she indicated that some behaviours that [X] now describes in the dynamic between he and his father, are remarkably similar to those which she herself suggests she experienced during the marriage.
It is possible that such statements, particularly if one accepts on its face, that which [X] relates to the Family Consultant, indicate that [X] may perceive that he and his mother are spiritually alike and close, have some influence or exert some influence upon [X] and impact upon or influence his views to live with her and travel north. However, those concerns are ameliorated particularly by further statements made by [X].
I have no doubt that what [X] expresses as his views are his own. They may have had some influence, whether by empathy with his mother or an active discussion, selling the proposal as it were with Ms Karsten. However, he goes so far as to suggest that he does not wish to remain in Sydney and that if he is made to do so, that he will simply take himself off to his mother or phone her to obtain her assistance in going to her.
Mr Garnet was cross-examined about those aspects of the evidence. There is no controversy that those views have been expressed by this young lad. Mr Garnet doubted that he would act upon them, and was surprised that he had expressed such views but, as he has expressed them, I am satisfied that whilst [X] may not act upon them, he genuinely means them and they are an expression of the strength of his view.
Mr Garnet had disavowed during cross-examination that [X]’s views as expressed were independent. I do not have such a doubt from a consideration of the totality of evidence. That is not to suggest that [X]’s views are dispositive. His best interests are addressed by many factors of which his views are but part. However, the Court is required, particularly since the entirety of the International Convention on the Rights of the Child have been incorporated into the Act, to not only consider children’s views but to demonstrate that they have been considered and to give them the weight which is appropriate.
Ms G, the Family Consultant, has suggested that she felt that [X] was, to some degree, a little immature. What that assessment was based upon is not entirely clear. However, even accepting Ms G’s evidence that this child may be acting in a fashion or with a level of maturity that might be below that which one might normatively expect from a nearly 14 year old, he is still a young man who has expressed very clear views.
Young [Y] is observed as being shy around strangers. Mr Garnet readily concedes that in his cross-examination, particularly when he is around adults as opposed to other children his age. One issue of significance that arose is from the following sentence:
[Y] and [X] were then informed that Mr Garnet would be invited in to play, but [Y] scowled and hid behind the foam blocks, stating, “don’t like him!”. [Y] could not be encouraged to engage or participate any further and only came out from behind the blocks when told he was returning to the childcare room.
Ms G was asked about that particular episode in cross-examination and by Counsel for Ms Karsten. Ms G was clear that she felt it may have suggested some underlying difficulty in the child’s relationship with the father, or that it may have related to something situational with respect to the interviews which were occurring that day. I am satisfied the latter is the more probable. There is nothing in the evidence that suggests that young [Y] has anything but an excellent relationship with each of his parents.
Certainly, the evidence suggests that the arrangements that his parents have put into place for his care and wellbeing have not necessarily, and at all times, served him well. Indeed, that was the very evidence of Ms Karsten, which I accept. She had indicated, when asked specifically about the distress which has been demonstrated by [Y] on several occasions at changeovers between the parents, “I don’t think that whatever we have created” – being the equal time arrangements – “is serving our son”. I accept that that is so.
Ms G indicated during her cross-examination, that it was possible that one of the factors that may have impacted upon young [Y] and generated his distress at changeovers between his parents, was the very arrangement that has been in place, i.e. the time arrangement itself had not served his needs. I need not make a finding that that is so.
Ms G had, however, identified that it was a possibility, together with other possibilities such as him picking up on the negative feelings of his parents, or reacting to the very circumstance of his two parents present, particularly if, as Ms Karsten has given evidence, they are at best, terse and uncomfortable changeovers where little, if anything, is said, and these children do not witness or experience their parents communicating with each other, that [Y]’s reactions are responsive to parental discomfort or conflict.
However, as regards that observed at the Child Inclusive Conference, I am not satisfied that I could read or infer anything into that which Ms G observed other than the child, on the occasion of that appointment, was somewhat distressed and acting out in the fashion described. I do not attribute it to any deficit in the relationship with his father and certainly not to any fear that child has of his father.
Issues as regards [X]’s fear of his father are also raised in Ms Karsten’s evidence. They are also somewhat unusually raised directly by [X] with the Court. A number of letters are annexed to the Affidavit of Ms Karsten which profess to be letters written by young [X] and addressed to “Dear Judge”. Those letters, or some of them, are suggested to be written at times when [X] is in his father’s care.
The letters are not objected to and are admitted on that basis. There is no suggestion nor challenge that they are written other than by [X]. Certainly the handwriting and spelling would suggest that they are written by a child.
In a letter 24 July 2014, [X] is suggested to write, quote:
Dear Judge. I am in pain, living like this is to (sic) much for me to bare (sic). Please I beg of you let me [Y] and the best parent I could wish for in the hole (sic) world go and live in Town B (sic). I know that I don’t deserve life or to live at all but please if I live through this I want to live in Town B (sic).
Leaving aside the suggestion that some influence may have been brought upon the child in writing that correspondence or formulating it, it is concerning. The child is suggesting such a depth of feeling that it cannot be ignored. Indeed, if one is to suggest that the child’s voice is genuinely heard in proceedings, it would be disingenuous to ignore it in this case. The remaining letters are in similar terms, although that is certainly the most strident and clear.
An earlier undated letter expresses as follows:
Dear Judge. You know me but I don’t know you, but I feel like your (sic) a good person.
(I make no comment on his assessment)
I’d just love it if you would allow me, Ms Karsten (the mother) and [Y] to live in Town B (sic), it’s a wonderful place I love it the (sic) and so dose (sic) [Y], every night since my first trip I’ve been thinking hard. This hole (sic) court thing is because of me it was my choice and I thought the world was good and far (sic) but, Mr Garnet (sic) (I am ashamed to call him my dad) is deniing (sic) my dream. I’ve live (sic) in Sydney my hole (sic) life. I want to live somewhere different place, Town B (sic) is my type of place. So I would love it if you allowed this to happen, I’d call it my home anyday. Ms Karsten is the best parent I’ll ever know, Mr Garnet not so much. Written by yours truly (sic), [X].
It then concludes:
P.S. I hate Mr Garnet but I love Mum.
I do not accept, on the totality of the evidence, that the last sentiment expressed is valid or correct. Clearly, this young boy has been placed in an invidious position in these proceedings, but I accept that he loves both of his parents and they him. The invidious position which has arisen is suggested by Mr Garnet to have been created, if not manufactured, by Ms Karsten through her unilateral determination to remove herself and the children to Town B. Ms Karsten suggests that it arises as a consequence of the father failing to acknowledge the children’s true feelings and allowing them to move with her as they desire.
There is nothing to be gained by me apportioning culpability between these parents. The situation exists and it exists as a consequence of adult decisions and adult acts or omissions. Those who are paying for the consequence of those issues are clearly not only the parties, but their children, and in particular [X].
It is compelling that a child, even if there has been some degree of pressure or exertion on the child to write such letters, would express himself in such terms - being denied his dream, expressing a desire that he is disaffected with or disinterested in life. As indicated, I am satisfied that the totality of the evidence would indicate that [X]’s views are largely genuine and certainly genuinely held and strongly expressed.
The reference that is made by [X], he feeling responsible for the present dilemma, is something for which he should be disabused, if he has not already been so disabused. He has done nothing to create these difficulties. He is simply in a circumstance which requires address and, if not by his parents, then address by this Court. Thankfully, in this instance, that is relatively timely.
The reference that he makes to his choices, would appear to relate to matters that are discussed in the evidence of each of the parties and the evidence of Mr P. As Mr P is not challenged and he is, it seems, non-partisan, I have satisfaction that I can rely upon his evidence without any real concern.
Mr P suggests that he was present at a meeting which occurred between young [X] and his father, albeit at the home of the mother, in which [X] is suggested to have said to his father, words to the effect, “I wanted to explain that I love you both but at this stage of my life I would prefer to live with Mum, than with you and I just wanted you to know that”.
The father is suggested to have responded with words, “These issues are complicated, we [being the parents] will work our own way through them. These things you don’t need to be concerned about they will be sorted about between me and Ms Karsten”. Young [X] is then suggested to have responded, “Nothing will be happening soon. It will take a long time”.
Mr P suggests [X]’s eyes became glassy as if he was about to cry, but he held back his tears and then left with his father. Mr Garnet gives a similar but not identical description. Indeed, in both his Affidavit and during his cross-examination, Mr Garnet suggested that the very conversation, whilst its terms are very much agreed, was suggestive of great pressure and influence upon the child by the mother.
In his cross‑examination Mr Garnet had suggested that [X] had said to him words to the effect, “I love you both very much. I feel like I am the meat in a sandwich. You’re one piece of bread and Mum’s the other. If I have to make a choice I want to move to Town B”. The father suggests in both his Affidavit material and cross-examination, that when [X] was saying this, he appeared nervous and was shaking, but as soon as he was reassured by his father that the parents would deal with the issue, that his demeanour changed and he seemed relieved.
That is essentially the point of difference between Mr Garnet and Mr P. It is not to suggest that Mr Garnet is a less than credible witness, but in the circumstances I prefer the evidence of Mr P. That adds to my satisfaction that a genuine view has been formed by young [X], held by him and expressed in forceful fashion in the various pieces of correspondence and various documents to which I have referred.
I propose now to turn to a discussion of the various issues that arise in the evidence, rather than to continue to trawl through the evidence of the parties and each of them.
The significant issue arises regarding the mother’s proposed move and her actual move. That would appear to be connected with financial issues, in particular, issues with respect to child support and payment of school fees. At the time these proceedings were commenced, and indeed since separation, neither party has paid child support to the other. Some degree of cross-examination of Mr Garnet occurred regarding his financial position.
Clearly, Mr Garnet is in a better financial position than his income tax return, particularly for 2013, would suggest, if based on nothing more than the concession by Mr Garnet that the company of which he is the director and shareholder, meets various expenses on his behalf including the rent for his home.
Accordingly, whilst the income that he receives for income tax purposes, as assessed by the Tax Office, is relatively meagre, certainly well below average weekly earnings and would, indeed, place him below the poverty line, he is able to support himself adequately and comfortably, although that is not to suggest that he maintains himself at any particular level.
I am concerned that I need not make any findings at all beyond an acceptance of Mr Garnet’s evidence that he does have some other financial assistance. Indeed, I can infer it from his own evidence that if the children are living with him, he can meet and will meet the cost of the children’s airfares to and from Town B, twice per school term or eight times a year, together with contribution towards transport during school holidays.
The relevance of those matters arises as Mr Garnet is critical of Ms Karsten for having moved three times in three years, and in the last 12 months or so immediately before her departure to Town B, and now each time she has returned living with friends rather than maintaining her own accommodation. Thankfully, due to the skill and dignity of Counsel for the father, submissions are not put attacking the mother as to the adequacy of her accommodation during the periods that the children have been in her care. She is doing the best she can in a difficult circumstance and that is acknowledged, and gracefully so.
However, the father’s criticisms of the mother with respect to her financial position and her move away from Sydney are, in the context of that which flowed during the father’s cross-examination as to past financial arrangements, somewhat disingenuous. He has taken no step to assist and it would seem, particularly with respect to the apportionment of a liability to Ms Karsten which in turn arose from funds transferred from (country omitted) to Australia, which cannot be properly categorised but need not be, that his criticism is unwarranted if not harsh.
Ms Karsten has clearly come out of this relationship with literally nothing. For her to be criticised for living in rental accommodation and moving from time to time, and then ultimately staying with friends who have offered her accommodation of perfectly adequate standard, although far from palatial, is unnecessary and is not a credit to Mr Garnet.
The ongoing issues with respect to the children’s school fees are also problematic. Certainly, I have no reason to doubt the voracity of the suggestion that Mr Garnet could no longer afford to meet 100 per cent of the school fees. However, when it became an issue as to the children’s return to and remaining within Sydney, very quickly a solution was found. Again, I do not make, nor need I make, any finding with respect to those matters, suffice to say it is one of the many issues that creates tension and controversy between the parties.
Communication
It is a common theme in proceedings before this Court that parties cannot communicate. That applies to these parents. There is certainly significant correspondence between them but little communication. At some points during her cross-examination, Ms Karsten was criticised for not having produced the totality of correspondence by email which has passed between the parties with respect to issues which they have been seeking to resolve. However, I accept the evidence of Ms Karsten that if she did so we would be here for weeks, as it is a significant volume of correspondence.
Likely effect of change including separation from either parent or any other child or person
As indicated, the proposals that the parents present to the Court are such that, in nine months’ time, the children will live in Town B as a matter of certainty and by consent. In those circumstances, I cannot understand the detriments which are suggested to apply to the children of relocating immediately. Mr Garnet suggests the detriment is that an immediate move will see a nine month period where he is not spending equal time with the children.
Clearly on the evidence, it is either he not spending equal time with the children and they being predominantly in the mother’s care, or the converse, as the mother is clear in her evidence that she can no longer face the biweekly time in Sydney, nor should the children be exposed to it. Thus, there will be an eventual change, consensually, and there will now be a change immediately.
I am satisfied that the detriment that is described by Mr Garnet applies equally in the converse. These children will not be able to spend equal time with their mother if they remain in Sydney, and I am satisfied that this converse scenario would be the more injurious to their best interests and wellbeing, particularly as contrary to [X]’s views.
The likely effect of change in moving immediately is beneficial. It will allow a period for these children to settle in. Whilst there is something to the suggestion of Mr Garnet that if he is also travelling up with the children, that he will be there to assist them in settling in. That perhaps minimises the role that Ms Karsten will play. It also creates the difficulties for the nine months alluded to above.
If the children are there and settled, then they will have the opportunity to become enmeshed in the area that the parents agree they will ultimately live. They will be able to begin to attend the new school which [X] suggests some desire to attend and to form new friendships, even if [X] is slow in making friends. In fact, if that is so, then the sooner he arrives, the quicker he will be able to begin that process. It will allow them to establish themselves, develop a support network, peers and the like, all of which will be enhanced if and when Mr Garnet also moves to the area. It will not be a disadvantage.
Practical difficulty and expense
That clearly will apply for the next nine months. Mr Garnet has proposed that if the children were living with him in Sydney, that he would pay for them to travel to Town B twice per school term, and that Ms Karsten could see them at other times, up to each alternate weekend if she were to return to Sydney. The mother’s proposal is that time would be limited to school holidays together, with each fourth weekend, essentially two weekends during school terms, with that time to be spent in Brisbane.
Mr Garnet in his cross-examination suggested that it would be difficult for him to have weekend time during school terms if the children were in Town B and he was in Sydney. He did not elaborate. I cannot understand how it can be so. If he can make arrangements to care for the children on a fulltime basis, surely he is able to make arrangements to have them in his care on weekends.
Accordingly, I propose to make Orders that the children would spend time with their father during school terms for the remainder of 2015 for the third and seventh weekend of each school term, or as may otherwise be agreed between the parents, and that the cost of travel for that time to be met by Mr Garnet (as he has proposed he is able to do if the children were living with him and he were paying to transport them). There is no reason to doubt that he could equally afford it if he were the person to whom the children were travelling.
Otherwise, it will be a matter for Mr Garnet as to whether the children are transported to Brisbane, and one would hope, in those circumstances, that the parties might negotiate with each other to exchange the children and avoid the need for airfares and the amount of travel and inconvenience that would incur were the children travel to Sydney. It will be a matter for Mr Garnet to nominate from time to time.
With respect to that however, I note another troubling indicia of the poor communication and lack of cooperation between the parents arose with the last Christmas school holidays when Mr Garnet was, in fact, in Brisbane visiting family members until two days before the children were due to pass into their mother’s care. Mr Garnet chose to return from Brisbane to Sydney, having to pass through Town B or over it, and then, the very day after he left Brisbane, have Ms Karsten leave Town B to travel to Sydney to then collect the children and return herself and them to Town B.
Whether that was bloody minded or simply a symptom of the inability of these parents to adequately communicate and resolve difficulties is unclear. But it was most assuredly a concrete demonstration of disadvantage inflicted upon these children by parents who cannot cooperate. One would hope it would not occur in the future. The focus of these parents must be upon their children and minimising the travel that they are undertaking.
If the father is able to travel to Town B or Brisbane more frequently, up to and including each alternate weekend, then provision will also be made for that time to occur. On one level, thankfully, [X] is described by his parents as not being particularly sporty or socially outgoing and thus, there is unlikely to be any issue regarding weekly commitments that he will be engaged in, other than in spending time with new friends and peers.
As I have already indicated, once the parties are both living in the Town B area, should that come to pass, I am satisfied that the extended alternate weekend proposal, a substantial and significant time rather than equal time arrangement, would better meet these children’s needs. It is also supported by the Independent Children’s Lawyer. I am not satisfied the children’s needs have been particularly well served, at least in recent times, by the equal time arrangement.
To some extent, that is conceded by both parents including Mr Garnet, who had suggested that until such time as these proceedings arose or, as he described it, Ms Karsten raised the issue of Town B, that the arrangement was working better, but that both their communication and the children’s coping with the week-about have now deteriorated.
I otherwise incorporate section 65DAA(5) of the Act.
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
As I have already indicated, Mr Garnet has proposed that he will arrange his business affairs or dispose of his business in order to relocate to Town B. That will provide real benefit and advantage to these children.
The parents will, for the next nine months, live a significant distance apart and may, in nine months or so, live much closer. That reality cannot yet be determined.
As regards the parents’ capacity to implement an arrangement for equal time, I am not satisfied they can, irrespective of with which parent the children are living. It would be an onerous burden on these children. It would meet the needs or interests of one or both parents but do nothing for the children. Their relationships will withstand longer separations, and it is important that they have the opportunity to settle where they will live and put down roots. Substantial and significant time would also be difficult. The best that can be achieved are limited weekends travelling and the father travelling to them for other times, and preferably the father spending that time with them in the township in which they live. He can then become acquainted with it, as Mr Garnet has suggested, to help them settle into that area, and that would be of great benefit not only to the children but their relationship with their father. They can take him about and show him the places that they have discovered, where they go to school, introduce him to their friends, etcetera.
The parents’ current and future capacity to communicate and resolve difficulties is problematic and sadly, as is frequently the case, made worse by these proceedings.
The impact of the arrangement on the children, I am satisfied, is detrimental if they do not move immediately. The parents agree they will move. There is no suggestion on the evidence of detriment through that occurring immediately. There is clear detriment identified from the above discussion of it being delayed.
The capacity of the parents
As indicated, both of these parents are capable parents. Ms Karsten raises some criticism of Mr Garnet’s capacity to meet the children’s emotional needs. Mr Garnet raises criticism of Ms Karsten, suggesting that he is better able to meet the children’s intellectual needs, assisting [X] in particular with his schoolwork.
One factor that arises is in relation to the two names used for [X]. The Independent Children’s Lawyer has urged the Court make an Order about that. I propose to do so. That was raised by the Independent Children’s Lawyer in their submissions, prior to submissions by Counsel for either party, and thus both parties were on notice of the proposed Order and able to address it, and thus afforded due process. It is necessary to begin to move towards some relative consistency for this lad in having one name used.
One cannot imagine a more concrete way to set up divides within this child’s mind as to the different person he is or is to be in each parent’s household, (or as to the difference between the households between which he passes), than to have him use two names. I do not accept that it necessarily goes so far as to affecting his personality, although Ms G indicated it would, in the long term, be disadvantageous to him for the practice to continue.
Other than the above issue and the absence of effective communication, I have no concerns about the capacity of these parents. They are good and decent parents, even though they cannot always see it or acknowledge it of the other.
Maturity, sex, lifestyle and background of the children
I am satisfied those factors are addressed above. [X], in particular, is an adolescent young man, who is expressing strong views and in terms which cause some concern for his welfare, especially if those views are seen by him to have been ignored. I am satisfied he would see his views as ignored if they were not acceded to. That is not to suggest that this determination is made purely to give him what he wants or is suggested to want. However, it is a strong and compelling piece of evidence.
Aboriginality
Neither parent identifies as Aboriginal or Torres Strait Islander, thus, nor do the children.
Attitude of the child and responsibilities of parenthood demonstrated by each parent
I am satisfied that is addressed above.
Family violence
There is some reference, particularly in Ms Karsten’s case, to behaviours that would fall within the definition of family violence in section 4AB of the Act. However, it is not pressed as a significant issue at hearing, nor is the Court urged to make any finding, and I do not do so.
Family violence Orders
There are none and, refreshingly, almost uniquely, there never have been.
Whether it is preferable to make Orders that will least likely lead to the institution of future proceedings
It is often difficult to give any real meaning to this factor. In this case however, I am satisfied it does have some real application. It was put to Mr Garnet that if the move to Town B, as proposed by Mr Garnet at the end of the 2015 school year, were delayed by those nine months, that there would be the potential for [X] to change his mind. It was agreed that this was so, although Mr Garnet clearly disavowed the suggestion that he would seek to actively interfere with the child’s views. Indeed, his evidence was that his changed proposal was responsive to the child’s views.
However, there is that possibility. There is the possibility, as [X] has described, that absence will make his heart grow fonder as it were and he would wish to take his own action or enlist his mother to assist him in going to her home. That would be undesirable.
More importantly, however, there is the real possibility that circumstances might change or be suggested or perceived to have changed and thus further Application made to interfere in the Orders. I am not satisfied that this possibility would determine the proceedings. However, it is relevant.
Overall, I am satisfied, for the reasons above, that the relief that is proposed by Ms Karsten and supported by the Independent Children’s Lawyer, is that which would best serve the children’s best interests, and accordingly I make Orders as follows.
Costs
At the conclusion of the proceedings, an Application for costs or contribution thereto, is made by the Independent Children’s Lawyer as regards each party.
Applications for costs are dealt with under section 117 of the Act which I incorporate herein:
Costs
(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.
(3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
(4A) If:
(a) under section 91B, an officer intervenes in proceedings; and
(b) the officer acts in good faith in relation to the proceedings;
the court must not, because of the intervention, make an order under subsection (2) of this section against the officer, or against an entity (including the Commonwealth or a State or Territory) by or on behalf of whom the officer was engaged or employed.
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
Subsection (1) creates what is often referred to as the general rule that each party shall bear his or her own costs. The Independent Children’s Lawyer, of course, is not a party, (see Bennett & Bennett (1991) FLC 92-191). Accordingly, the general rule does not apply to them. Further, I am not satisfied that the non-application of subsection (1) revives the general civil principle that costs follow the cause.
The Independent Children’s Lawyer has not agitated an Application before the Court, but has assisted the Court amply, ably and with the Court’s great thanks.
Subsection (2) reserves to the Court a discretion to make an Order for costs, subject to meeting the dual test of both a justifying circumstance and justice and equity (for discussion of same see Re JJT & Ors; Ex Parte Victorian Legal Aid [1998] FLC 92-812).
Subsection (2)(a) sets out a list of non-exhaustive but prescribed considerations.
Subsection (3) makes clear and avoids any doubt as might have arisen from prior case law, that the Independent Children’s Lawyer has standing to make and prosecute an Application for costs.
Subsection (4A) is not relevant, applying to child welfare agencies.
Subsection (5) makes clear that the Court must disregard the public funding of the Independent Children’s Lawyer through a Legal Aid Commission in any determination that it makes, such considerations having gained some currency prior to the 2006 amendments.
Importantly, subsection (4) provides, quote:
In proceedings in which an Independent Children’s Lawyer for a child has been appointed, if:
(a) a party to the proceedings has received Legal Aid in respect of the proceedings; or,
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the Independent Children’s Lawyer;
the court must [emphasis added] not make an order … against that party in relation to the costs of the Independent Children’s Lawyer.
The Court is advised that the mother is in receipt of a grant of Legal Aid. Leaving aside the potential issue that arises from the drafting of the provision and interpretation of the phrase, “has received Legal Aid in respect of the proceedings”, I am satisfied, for present purposes, that I would be precluded from making an Order for costs or contribution thereto against the mother.
In relation to the father, it is conceded by the Independent Children’s Lawyer that, as a consequence of Orders made today, the father will bear the brunt, as it were, of travel costs at least for the next nine months or so. He will then, if he relocates to Town B, have significant relocation costs and re-establishment costs. He may also suffer financial detriment through disposing of his business, that from which he has earned income, an income which Ms Karsten describes as vastly superior to that which he discloses but I need not go past the evidence of Mr Garnet that the income is modest.
The father, on his evidence, has a meagre income from his business, although as would be apparent from the above comments, he receives the benefit of other income from the business in that it pays certain expenses for him, including but not limited to, the rental on the home in which he resides. It is unclear whether that is in some way through ledger entry or otherwise accounted for as income for the purpose of income tax, but I need not be concerned with that issue.
The father’s income for the last completed financial year for which a return has been lodged, being that ending 30 June 2013, is a sum of $22,880. That would place the father below the poverty line. In those circumstances, I could not fail but to be satisfied that the father would suffer financial hardship. On that basis I am satisfied that, again, I am precluded from making an Order for costs.
Accordingly, I make the following further Orders (see Orders).
I certify that the preceding two hundred and eight-six (286) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 12 September 2018
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