Green & Townsend
[2025] FedCFamC2F 695
•27 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Green & Townsend [2025] FedCFamC2F 695
File number(s): PAC 4206 of 2023 Judgment of: JUDGE BROWN Date of judgment: 27 May 2025 Catchwords: FAMILY LAW – Parenting proceedings – proceeding subject to ban on cross-examination due to family violence – father has failed to secure funding for legal assistance and to file affidavit material for trial – application by mother for proceedings to be determined on undefended basis – father seeks to adjourn proceedings – high conflict – matters to be considered – child concerned almost thirteen years of age – family report writer advises child stressed by proceedings and seeks their end – best interests – application determined on undefended basis Legislation: Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61B, 61CA, 61DA, 61DAA, 64B, 65AA, 65C, 65D, 68LA, 69ZN, 69ZQ, 102NA, 102QAB
Australian Passports Act 2005 (Cth) s 11(2)
Federal Court Act 1976 (Cth) s 31A
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) r 1.33, 10.26, 10.27(2)
Cases cited: Adler & Parrow [2023] FedCFamC2F 1758
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Bartel & Schmucker (No 3) [2012] FamCA 1094
Gin & Hing [2010] FamCA 617
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Stativa & Stativa [2015] FamCAFC 170
Taylor v Taylor (1979) 143 CLR 1
Division: Division 2 Family Law Number of paragraphs: 137 Date of hearing: 26 - 27 May 2025 Place: Parramatta Counsel for the Applicant: Mr Duc Solicitor for the Applicant: Ark Law Lawyers Respondent: Self-represented, by video link Counsel for the Independent Children's Lawyer: Ms Webb Solicitor for the Independent Children's Lawyer: Shedden & Associates ORDER
PAC 4206 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GREEN
Applicant
AND: MR TOWNSEND
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
27 MAY 2025
THE COURT ORDERS THAT:
1.The oral application made by the Applicant mother at the commencement of the trial for the matter to proceed on an undefended basis is granted.
2.All previous orders are discharged.
3.The Applicant mother shall have sole decision-making responsibility for the child C born in 2012 (aged 13 years) (the child).
4.Notwithstanding Order 3, prior to exercising sole decision-making responsibility for the child, the Applicant mother shall:
(a)Notify the Respondent father in writing 21 days prior to making decisions in relation to the child about major long-term issues as defined in Section 4 of the Family Law Act1975 (Cth) including but not limited to the child’s education and health; and
(b)The Respondent father shall provide his views, if any, to the Applicant mother in writing 7 days prior to that decision being made and the Applicant mother shall consider those views; and
(c)Within 14 days of exercising decision-making responsibility pursuant to this Order the Applicant mother shall provide to the Respondent father written notice of her final decision and actions.
5.The child shall live with the Applicant mother.
6.The child shall spend time with the Respondent father as agreed but failing agreement as follows: -
(a)During all school term holidays (at the conclusion of Terms 1, 2, & 3) from 12 noon on the second Saturday of the school term holiday period for a period of eight (8) consecutive nights returning the child to the Applicant mother’s care by 12 noon on the Sunday prior to the school term commencing.
(b)During Term 4 (Christmas) school holiday periods as follows:
(i)In odd numbered years commencing 2025/2026 for a period of 21 consecutive nights from 12 noon 9th January to 12 noon 30 January.
(ii)In even numbered years commencing 2026/2027 for a period of 21 consecutive nights from 12 noon on the first day after the child finishes Term 4 for a period of 21 consecutive nights returning the child to the Applicant mother’s care at 12 noon on the 22nd day after the child commencing spending time with the Respondent father pursuant to this Order.
(c)On Father’s Day weekend, commencing at the conclusion of school on Friday with the Respondent father to collect the child from her school and concluding at 4:00pm on Sunday with changeover to take place inside the restaurant area at McDonalds located at DD Street, Suburb EE, New South Wales.
7.The child shall have telephone/Facetime communication with the Respondent father and the Applicant mother in accordance with her wishes and the Applicant mother and Respondent father will facilitate such communication by ensuring that the child has access to a telephone or such other electronic devices to enable the child to contact the Respondent father and the Applicant mother will ensure that the child is given privacy during all communications with the Respondent father.
8.The parties shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other party in writing within 48 hours of any change to their residential address or telephone number.
9.The parties shall keep the other advised of the health of the child including any serious illness, medication that may be prescribed from time to time, or hospitalisation of the child as soon as reasonably practicable and to allow the other parent to visit the child if hospitalised.
10.To facilitate changeovers relevant to Orders 6(a) and 6(b), unless otherwise agreed in writing no less than 48 hours prior to the commencement of the child spending time, changeover shall be inside the restaurant area at McDonalds located at DD Street, Suburb EE, New South Wales.
11.Each of the parties shall be at liberty to travel outside of the Commonwealth of Australia with the child for the purpose of holidays and to visit with extended family members overseas with such travel to be as follows:
(a)The travelling party will provide 42 days’ notice of such intention.
(b)The Applicant mother will provide the Respondent father with the child’s passport on receipt of the Respondent father’s notice of his intention to travel overseas.
(c)The travelling party will provide a copy of the return travel documents.
(d)The travelling party will provide a copy of the intended travel itinerary.
(e)The travelling party will provide contact details to enable the other party to contact the child when travelling overseas.
(f)The Respondent father will return the child’s passport to the Applicant mother within 48 hours of his return to Australia.
12.Pursuant to 68B of the Family Law Act1975 (Cth), the Court an injunction is made restraining the Applicant mother from entering or remaining at the following places:
(a)Any residence in which Mr Townsend may reside in from time to time.
(b)Any place of employment of Mr Townsend.
13.Pursuant to 68B of the Family Law Act1975 (Cth), the Court an injunction is made restraining the Respondent father from entering or remaining at the following places:
(a)Any residence in which Ms Green may reside in from time to time.
(b)Any place of employment of Ms Green.
14.The parties are restrained from consuming alcohol in excess during any time when the child is in either parent’s care or within 24 hours of the child entering either parent’s care.
15.The parties are restrained from exposing the child to any other people consuming alcohol to excess and where this occurs in the presence of the child, the party shall remove the child from the situation.
16.Each party is restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive, or unpleasant fashion in the presence or hearing of the child;
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the child or permitting any other person to do so.
(c)Abusing, insulting, belittling, or otherwise denigrating the other parent or any member of the other parent's household in the presence of the child.
17.That within six (6) months from the date of these Orders, the parties shall pay the Independent Children’s Lawyer’s costs in the sum of $1,850.00 each.
18.No further Order for costs in respect of the Independent Children’s Lawyer’s costs.
19.That within fourteen days (14) of the date of the making of these Orders, the Independent Children’s Lawyer shall make arrangements to meet with the child either in person or via an agreed electronic platform to explain these final orders and thereafter is discharged from these proceedings.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
This is a sad and confronting parenting case. The legal issue to be determined is not a particularly complex one but it is one redolent with emotional significance for those who will be affected by it.
In brief terms, the court must decide, on the one hand, whether to proceed on an undefended basis in light of one of the parties having failed to advance his case in a diligent and proactive manner or, on the other hand, to adjourn the case for most probably a significant period of time, until it can be re-fixed for another final hearing.
If the court adopts the first position, one party will necessarily feel aggrieved and hard done by. If it adopts the latter, the other will feel equally hard done by and penalised notwithstanding the fact that she has done what is required of her to prepare her case and been ready for the trial, which has been fixed since October of 2024, approximately eight months ago.
More significantly, the court must consider what will be achieved by delaying the hearing and what might be the emotional implications for the child concerned of protracting what are demonstrably psychologically corrosive proceedings for her. What is best for her is the most important consideration for the court.
Overlaying this difficulty is the fact that one party asserts that his attempts to advance his case have been impacted by the natural disaster of the current Region HH New South Wales floods and it would be patently unfair to allow the case to be concluded in these circumstances without giving him the opportunity of more time to prepare his case.
In counter, the other party asserts that the floods, significant though they obviously are to those affected by them, are a red herring given the time available to prepare for the trial and the unimpeachable fact that the party in default has filed only one limited affidavit in the case – on 23 May 2024 – during the period the case has been before the court and was directed to file his affidavit material for trial 6 weeks ago.
In addition, she points to the fact that it has been said at two recent court mentions that further material will be forthcoming from him, but this material has not materialised, leading her to doubt that he is genuine. In these circumstances, she submits it would be unfair to her to further delay the finalisation of the case and nothing useful is likely to be achieved by such a delay.
BACKGROUND
The parties to the case are Ms Green, the mother, and Mr Townsend, the father. They are the parents of C (“C”) born in 2012, who is the subject of these proceedings. Besides C, the parties are the parents of B born in 2004.
Ms Green is aged 52; Mr Townsend is 49. The parties began a relationship in late 2000; first separated in 2005 but briefly reconciled in 2011 before finally separating in 2012, when C was a baby. It seems relatively uncontroversial that Ms Green has been the parent who provided more of the care for C in her infancy, given when the parties separated. However, it also clear that she has spent significant periods with her father and knows him well and loves him.
There have been vitriolic proceedings in the past surrounding the children going to the United Kingdom and the engagement of trans-national legal arrangements to secure their return to this country. I have been provided with only the most cursory of detail regarding these proceedings, but it is my apprehension that they were emotionally debilitating for all concerned.
Clearly, B is a child no-longer and so cannot be the subject of proceedings such as these. It does appear to be the case that he was the subject of earlier acrimonious proceedings between the parties and so far as C is concerned, she has been the subject of litigation, in one form or another, since shortly after she was born.
Approximately eight years ago, when he was a teenager, B elected to withdraw from his father on the basis that Mr Townsend had issues with alcohol, which caused him to become argumentative and aggressive. In oral submission to the court, Mr Townsend indicated that he had recently attended B’s twenty first and the two were reconciled. It is a feature of Mr Townsend’s case that Ms Green alienated B from him and will do the same again so far as C is concerned.
Ms Green and C currently live in Suburb S, which is a suburb to the south of Sydney. Mr Townsend lives in Town FF, a small township near Town GG in Region HH, New South Wales. Around 500 kilometres separate the two households. This distance is a significant feature in the case and a complicating matter.
The most recent final order concerning C was made by Cleary J on 7 October 2016, concluding proceedings which began in 2013. The orders envisaged both B and C living with their mother and spending regular time with their father for five days per fortnight, during school terms; and for longer periods during school holidays. The parties were conferred with equal shared parental responsibility.
At the time of this order, it would seem to be the case that the parties were living in relative proximity to one another.
Mr Townsend has re-partnered. His current partner is Ms V. He and Ms V are the parents of W, who was born in 2016.
One of the major precipitating factors leading to the current round of proceedings is the fact of Mr Townsend, Ms V and W’s relocation to Region HH in August/September 2023. Axiomatically, the pre-existing orders had been overtaken by events but it also seems apparent that the parties lacked any facility to re-negotiate arrangements in their changed circumstances.
It is also Ms Green’s case that the relationship between the father and his wife, Ms V was a volatile one and both C and W had been exposed to significant family violence and C’s school attendance had been compromised when in her father’s care.
The father’s position, advocated by him orally to the court, but not substantiated in any filed documents, is that he felt compelled to move away from Sydney because of Ms Green’s coercive and controlling behaviour towards him, which was characterised by her continual recourse to the authorities – primarily police and child protection – to make unsubstantiated complaints about him. He found this conduct to be intolerable and so moved as far away as he could from her.
In blunt terms, it would seem to be Mr Townsend’s position that Ms Green is intent on alienating C’s affections towards him by manipulating the systems designed to protect children and the victims of violence against him. He characterises this as a form of systems abuse. He also has other criticisms of Ms Green, namely that she is more focussed on her work as a professional than in caring for C.
In equally blunt terms, it is Ms Green’s position that Mr Townsend is a violent person, who has had a significant history of alcohol and substance abuse. She further asserts that he has little insight into his behaviour and has demonstrated no capacity to change. It is her position that she has only had recourse to the relevant authorities for justifiable reasons, which relate to Mr Townsend’s behaviour.
These diametrically opposed positions, when coupled with the distance between their respective homes, inform the positions of each of the parties. Ms Green seeks orders that she have sole decision-making responsibility for all major long-term decisions for C, who should live with her and spend time with her father for seven nights during each school holiday period. She seeks other orders in respect of overseas travel; injunctions; and how information is exchanged between the parties.
In his response filed on 23 May 2024, Mr Townsend seeks orders that C relocate to Town FF and be enrolled in JJ School so that she can live with him. He proposes that she spend half of each school holiday with her mother. He is open to the sharing of parental responsibility.
Ms Green and Mr Townsend are not the only parties to the proceedings. On account of serious allegations regarding C’s possible exposure to family violence and alcohol and substance abuse; mutually exchanged allegations of poor parenting and a lack of parental insight generally; and the extraordinarily polarised positions of the parties and the intractability of the conflict between them; it was ordered on 22 May 2024 that C be represented independently of her parents in the case.
C’s representative is Julie Shedden, an experienced family lawyer. Ms Shedden has briefed a barrister to appear on her behalf in the case, Ms Webb. Ms Shedden is to be regarded as a party of equal importance to the parents in this case.
Pursuant to the provisions of s 68LA of the Family Law Act 1975, both Ms Shedden and Ms Webb are required to analyse all the evidence available to them, subject it to scrutiny and advocate to the court the outcome which they believe will best serve C’s interests.
The evidence indicates C is a secondary school student at S School. She is in Year 8 and is reported to be doing well academically. Necessarily, as it has been the reality of her life for as long as she can remember, she is well aware of the conflict which surrounds her parenting.
In these circumstances, what are C’s perceptions of her family and what are her views about what would be best for her, must be a central consideration for the court. At an earlier stage of proceedings, it was ordered that a family report be prepared. This was compiled by Ms KK, a court-based family consultant.
Ms KK described C as a very wise and mature young person. It was Ms KK’s impression that C cares deeply about both her parents. She was stressed about having to provide her views about them to the expert. When questioned she began to cry and when pressed, Ms KK records the following:
[C] then opened up on her own accord and the report writer allowed [C] space to share her own narrative. [C] said, “I just want this all to stop, I have been going through this for years. I just wish they would grow up and leave me out of everything.” [C] said, “I love them both, and I just want them to stop.” [C] said, “I wish they would grow up, they are older than me, and I feel like I am more mature than them.”
C had criticisms of her mother asserting she riled her father and was focussed on work but said she felt happy and safe in her mother’s care. She denied having been exposed to her father’s violent behaviour – a view not shared by B nor by other aspect of Ms Green’s evidence which suggest C had threatened self-harm in December 2022.
It is a consistent theme of the family report that C does not want to choose between her parents. In this context, C reiterated that she loved both her parents but she wished they would stop from their unending conflict. C referred to the tyranny of geography which this case represents as a consequence of Mr Townsend’s decision to move away from Sydney. Ms KK reported as follows:
[C] said when she is older, she is going to “move out” on her own, so that she does not have to “choose” between her parents. She said she has considered that [City LL] is half way and she will likely move here. She said she does not want to “choose” either parent because it “stresses her out” and she wishes they “could see the pressure” it causes her.
[C] said that she would not like to move to [Town GG] full time as “she likes her friends” and she “likes where she lives” In [Suburb S]. She indicated she was enrolled at [JJ] School [C] said she “does not know [Town GG]” and other than her family “she knows no one.” [C] said ideally, she would like the spend time arrangements to revert to what they were (every second Friday to Wednesday); however, she said she knows this is “too hard for dad.” She indicated she wishes her father was still living in Sydney because she “misses him” and she “misses her sister.” [C] said if her father has no plans on returning to Sydney, her wishes would be for the spend time arrangements to continue as they are until she attains the age of eighteen.
At the end of the interview, [C] was noted to be relaxed with the report writer and was discussing her goals of becoming a [beautician]. [C] asked for ice for her eyes as she did not want her mother to see she was upset. [C] indicated she was felt uncomfortable returning to the foyer while she had red eyes and it appeared she felt safe and comfortable sitting with the report writer, and was reluctant to leave.
In the context of the competing applications for, on the one hand an undefended hearing and on the other an adjournment, the perpetuation of the stress a continuation of the proceedings inevitably entails for C, when coupled with her clear preference to maintain her current living and educational arrangements, is, in my view, the most significant determinative factor.
In addition, as is self-apparent, the court has no magic wand so far as the distance between the parties’ two homes. Whatever happens, C must live in one location and spend time with her other parent during school holidays. Her views and the stability and long-standing nature of the current arrangements necessarily militate in favour of the maintenance of the current status quo.
Overall, Ms KK considered C was stuck in a loyalty bind, which was causing her significant anxiety and distress. She encouraged the parties themselves to stop their conflict to minimise the risk of causing serious mental harm to C.
Given what C has told her and what she had gleaned from subpoenaed police and child protection documents, Ms KK had criticism of each parent – the father for minimising his history of violence, which was document by police; the mother for riling up Mr Townsend and unduly reporting her concerns to the authorities.
In these circumstances, Ms KK’s recommendations were unequivocal and were as follows:
·Shared decision making.
·C to live with Ms Green.
·C to spend time with Mr Townsend during school holidays on a week about arrangement, and for three consecutive weeks in the Christmas holidays.
·Future spend time arrangements to be implemented as “per C’s needs.”
·Mr Townsend to complete a Men’s Behaviour Change Program.
·Ms Green to engage with a family therapist trained in working with co-parent dynamics.
·C to be engaged with her own therapist.
·The parents to use the Family Wizard application.
Ms Shedden interviewed C as recently as 6 May 2024. C’s reported preference was to remain living with her mother and to spend half of school holidays with her father and Ms V and W. She favours C continuing to live with her mother and spending half of each school holiday with her father. She takes a more nuanced approach to parental responsibility taking the view that one parent, namely Ms Green, should have decision-making authority but only after Mr Townsend’s views about such matters had been canvassed.
HISTORY OF THE PROCEEDINGS
The mother began the most recent round of proceedings with a contravention application filed on 11 August 2023. It is alleged that the father had not returned C to her care following a period of time with her father. At the first mention of the matter, on 26 October 2023, an order was made pursuant to s 102NA of the Family Law Act 1975 (Cth).[1]
[1] Hereinafter referred to as the Act.
The effect of this order was to prevent each of the parties from cross-examining the other personally. Rather any cross-examination must be undertaken by a legal practitioner. In order to ameliorate the possibly harsh consequence of the application of the section and prevent any possible miscarriages of justice, which may conceivably arise if evidence is not properly tested, the Commonwealth Government has instigated a scheme known as the Commonwealth Family Violence and Cross-Examination of Parties Scheme, which funds legal representation of any party subject to a ban on cross-examination.
On 4 October 2024, McClelland DCJ fixed the matter for trial before Judge Myer for 4 days commencing on 26 May 2025. Each party was directed to file affidavit material for trial 48 days prior to its listing. From Ms Green’s point of view because Mr Townsend was seeking a change of living arrangements for C, it was essential that Ms V should also provide an affidavit and be available for cross-examination. At mentions prior to the trial, Ms Green emphasised that she did not wish to be ambushed by late filed affidavits.
Mr Townsend’s previous solicitor was present when the case was listed. Clearly, he has known of the trial for a significant period of time. The earlier order relating to s 102NA was reiterated. Orders were made in respect of the filing of subpoenas. Those advising Ms Green have issued several relating to C’s school and Police and Child Protection authorities, amongst others.
Ms Green is a professional. Mr Townsend is employed as a tradesperson. I appreciate this differentiation in employment must have implication for how easily each can navigate the complexity of the legal system as it pertains to children. However, Mr Townsend cannot be regarded as being without experience in the system.
The case has been listed for a significant period of time; the order concerning cross-examination is long-standing; the report regarding C’s parenting is not unduly complicated. The change of circumstances which require the court to revisit C’s parenting arrangements was initiated by Mr Townsend’s relocation. Any nuanced consideration of C’s circumstances would seem to indicate that she is a vulnerable child, who is at the risk of being occasioned harm by any undue prolongation of the case concerning her.
In the lead up to the trial, the parties attended a mediation arranged by Legal Aid. They were unable to resolve the issues between them. Ms Shedden was concerned that Mr Townsend did not appear to have done anything to ready his case for trial and had no lawyer. She sought the urgent listing of the matter before me for directions. The original trial judge, based in Parramatta was indisposed and it had been arranged for me to come from Adelaide to hear the case. For obvious reasons, I was keen to ascertain what was happening.
Mr Townsend has told me that he has applied for funding from the cross-examination scheme, but no lawyer has been appointed for him. He has not provided any document in support of this assertion and the fact that no lawyer had been appointed was raised with the court on Ms Shedden’s initiative on 13 May 2025.
Mr Townsend told me that his former solicitor had prepared an affidavit for him and it was only a matter of him obtaining the document from the lawyer so that it could be filed. In this context, I ordered that the affidavit be filed by 15 May and put over the case for mention the following day. No affidavit was forthcoming and no further information was provided about the provision of legal representation for Mr Townsend.
No progress had been made by 16 May. Mr Duc counsel for the mother indicated his intention to apply for the matter to proceed on an undefended basis. It was his submission that his client wished to finalise the matter and did not want to be put in a position of being compelled to cross-examine Mr Townsend in the absence of an affidavit containing his evidence in chief. In these circumstances, I confirmed the trial. Mr Townsend indicated that he was still making endeavours to obtain his draft affidavit and chase up a lawyer.
In the meantime the floods intervened. No affidavit has been filed. Mr Townsend requested to appear by telephone. He remains unrepresented with no indication as to who, if anyone, will be his lawyer. I have been advised that it is likely that the case, if adjourned, could not be re-listed until sometime most likely in the first half of 2026.
Apart from Mr Townsend’s assertion that he has done and is doing everything he can do, there is no concrete evidence to show that he has done anything to advance his case since May of last year. He must know the moment of the case from Ms Green’s perspective. Ms KK and Ms Shedden have indicated to him what is C’s perspective on it.
After her initial contravention and related contempt applications, Ms Green took the view that it was likely to be a more effective use of resources if she applied to change the existing final order, which she did in early 2024. This was done following an apparent intensification of the intractability of the conflict between the parties reflected in the problem of C maintaining relations with her father over the 500 kilometre distance between Suburb S and Town FF.
In short compass, when from her perspective C was not returned following visits to her father, Ms Green filed an enforcement application and then a contempt application. As previously indicated, it was in May of 2024 that Mr Townsend filed his affidavit and response documents.
Ms Green filed a comprehensive affidavit on 5 May 2025. Ms Shedden has done what is required of her in terms of speaking with C. In this context, I must bear in mind that I am not solely adjudicating between the rights of the parents. My function is primarily to ensure the best outcome for C herself.
Having given Mr Townsend an opportunity to file his affidavit material, in the context on the ban applicable to him of being able to cross-examine Ms Green, I do not consider that I am obliged, in the pursuit of some perfect level of procedural fairness, to give Mr Townsend an open-ended facility to file his necessary documents, which comes at the price of C’s best interests.
In this context, the Commonwealth Legislature has attempted to provide assistance to courts such as this one in how it conducts what are designated as child-related proceedings as defined by Division 12A of the Act.
Pursuant to s 69ZN of the Act, the court is directed to give effect to a number of delineated principles in respect of how proceedings relating to children are to be conducted. The effect of these principles is to ensure that the court’s focus always remains on the best interests of the children concerned rather than on the perceived rights of their parents or others.
In general terms, these principles, of which there are five in number, can be summarised as follows:
·The court is to consider the needs of the child concerned and the impact the conduct of proceedings may have on that child;
·The court is to actively direct, control and manage proceedings involving children;
·The court is to conduct proceedings to ensure a child, or children and parties are safeguarded from exposure to family violence;
·Proceedings are to be conducted in a manner that will promote cooperation and child-focus between the parties concerned; and
·Proceedings are to be conducted without undue delay, formality and legal technicality.
In this context, pursuant to the provisions of s 69ZQ(1)(a) of the Act the court has authority to decide which issues raised by the parties require its full investigation and hearing and which may be disposed of summarily.
Given the contents of Ms KK’s report and the plea for it all to end, which emanates from C herself, I am gravely concerned at the impact an adjournment of the case is likely to have on C. In purely practical terms, it is difficult to conceive what such an adjournment will achieve.
Given the distance involved, a sharing of care is out of the question. C has lived in Town FF for some time and has no apparent wish to move. Despite being given an opportunity to provide evidence as to whether any of these assumptions are fallacious, Mr Townsend has not done so.
THE NATURE OF AN UNDEFENDED HEARING
It is a significant thing for proceedings to be determined in the absence of evidence from one of the parties concerned. The court has an obligation to ensure that the parties to proceedings before it have an opportunity to participate in those proceedings. However, there must be limits on such an obligation, which cannot be indefinitely prolonged.
Before a person can be adversely affected by a judicial order, they must be afforded an adequate opportunity to be heard.[2] I am satisfied that Mr Townsend, notwithstanding the recent floods, has been given an adequate opportunity to appear in these proceedings and put his position before the court. Ms Green too, is entitled to a procedurally fair hearing. She has provided her evidence in chief to Mr Townsend and is ready to procced. He has not reciprocated.
[2] See Taylor v Taylor (1979) 143 CLR 1, 20 (Murphy J).
Ms Green’s application has been on foot for some time. She is entitled to have it determined within a reasonable period of time, pursuant to the applicable principles of law. This is according to Part VII of the Act.
In this context, s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) is relevant. It contains what is characterised as the court’s overarching purpose, which it is to apply in how it conducts all litigation coming before the court.
In summary, the court is required to facilitate the just resolution of disputes, as quickly, inexpensively and efficiently as possible. In so doing it has an obligation to consider other users of the court.
The Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) deals with how the court is to apply this overarching purpose in practical terms. Rule 1.33 provides as follows:
(1)If a step is taken after the time specified for taking the step by these Rules, the Family Law Regulations or a procedural order, the step is of no effect.
(2)If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:
(a)dismiss all or part of the proceeding;
(b)set aside a step taken or an order made;
(c)determine the proceeding as if it were undefended;
(d)order costs;
(e)prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f)make any other order the court considers necessary, having regard to the overarching purpose of these Rules (see rule 1.04).
Part 10.6 of the Rules deals with the court’s authority to enter judgment against a respondent if that respondent defaults in complying with a court order, or fails to prosecute any proceedings with due diligence.
Pursuant to rule 10.26 a party is in default if, among other things, he or she has failed to:
·Comply with an order of the court in the proceedings; or
·Produce a document as required; or
·Do any act required to be done by these Rules; or
·Prosecute the proceedings with due diligence.
I am satisfied that Mr Townsend has not prosecuted his application with the level of diligence required. This lack of application pre-dates the flooding. In addition, this lack of application must be assessed as being long-standing given when the case was fixed for trial and the cross-examination ban order made.
In these circumstances, pursuant to the provisions of rule 10.27(2), the court may, if it considers it just, enter judgment and make orders in favour of Ms Green against Mr Townsend, on an undefended basis.
I appreciate that it all very well for the court to talk in the abstract terms envisaged by the High Court in cases such as Aon Risk Services Australia Limited v Australian National University[3]which focus on efficient case management and the prejudice likely to be occasioned to other court users, if courts do not deal effectively with those who are remiss or negligent in the discharge of their responsibilities.
[3] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
In addition, as Judge Beckhouse remarked in Adler & Parrow[4] the court must be cognisant of the potential wastage of public funds which relate to the appointment of Independent Children’s Lawyers and Legal Aid funding. Clearly these resources are not unlimited and must be allocated fairly. If the current matter is adjourned monies allocated to the ICL may be wasted.
[4] Adler & Parrow [2023] FedCFamC2F 1758.
However, at the end of the day, the fundamental issue for the court to assess is whether proceeding on an undefended basis can only be regarded as an afront to principles of natural justice because it will deprive Mr Townsend of his right to present a case that may well be regarded as weak but remains of fundamental importance to him. Essentially, the court must be careful not to proceed precipitately because of misguided notions of efficiency.
Section 102QAB of the Act provides a mechanism for the court to summarily dismiss an application. In particular, sub-section (2) provides as follows:
The court may make a decree for one party (the first party) against another in relation to the whole or any part of a proceedings if:
(a) the first party is prosecuting the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
Section 102QAB(3) of the Act provides a gloss to this provision. It provides that a proceeding need not be either hopeless or bound to fail to have no reasonable prospects of success.
In Lindon v Commonwealth of Australia (No 2),[5] Kirby J provided a list of principles applicable to summary judgment, of which the Full Court of the Family Court, in Stativa & Stativa,[6] provided the full synopsis in point form:
•It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
•The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
•That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
•If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
•Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
•The “guiding principle” is doing what is just.[7]
[5] Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, 256 (Kirby J).
[6] Stativa & Stativa [2015] FamCAFC 170.
[7] See Stativa & Stativa [2015] FamCAFC 170 at [8] (Ainslie-Wallace, Murphy & Aldridge JJ).
In applying these principles, the court must not overlook what the High Court characterised as the negative admonition contained in provisions analogous to s 102QAB(3) of the Act [section 31A of the Federal Court Act 1976 (Cth)] that a proceedings, or part thereof may be found to have no reasonable prospects of successful prosecution even if it cannot be said that it is ‘hopeless’ or ‘bound to fail’.[8]
[8] See Spencer v Commonwealth of Australia (2010) 241 CLR 118, 139 [52] (Hayne, Crennan, Kiefel and Bell JJ).
In this context, the High Court said as follows:
[I]t is important to begin by recognising that the combined effect of sub-sections (2) & (3) is that the inquiry required in this case is whether there is a ‘reasonable’ prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceedings would necessarily fail.
In this respect section 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.[9]
[9] See Spencer v Commonwealth of Australia (2010) 241 CLR 118, 139 [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ).
The jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.[10] The case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination … by the court.[11]
[10] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409, 415 [12] (Weinberg J).
[11] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409, 415 [13], citing Dey v Victorian Railway Commissioners (1949) 78 CLR 62, 91 (Dixon J).
In my view, in the context of these various considerations – the child related proceeding provisions and the need to protect children from the emotional consequence of adversarial litigation; the overarching purpose provisions and the need to conduct litigation efficiently; the principles related to undefended proceedings themselves; and finally the court authority in managing the litigation coming before it to summarily dismiss proceedings which lack a reasonable prospect of success, it is incumbent on the court to examine the provision of Part VII of the Act and focus on C’s best interests.
THE APPLICABLE LEGAL CONSIDERATIONS
The law relating to the making of parenting orders in respect of children, contained in Part VII of the Family Law Act, has been subject to significant recent amendment, which came into force in May of 2024.
In this context, it is to be noted that there is no-longer any legal presumption in favour of the shared care of a child, whether subject to consideration of what is in the best interests of the child concerned or what is reasonably practicable to implement. Similarly, the concept of a child spending substantial and significant periods of time with a parent has also been abolished.
The aim of the amending legislation is to simplify and clarify the law relating to post separation parenting of children and refine the factors to be taken into account in determining what is in a child’s best interest so that the court’s focus always remains on the interests of each and every child in the case concerned.
However, it remains the case that before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration.[12]
[12] Family Law Act 1975 (Cth) ss 60CA and 65AA.
How a court determines what is in a particular child’s best interests is by reference to a list of six matters contained in s 60CC(2), which can be summarised as follows:
·The arrangement which will best promote the safety of the child (and the child’s carers) from being subject to family violence, abuse, neglect or other harm;
·Any views expressed by the child;
·The developmental, psychological, emotional and cultural needs of the child;
·The parental capacity of each person who has or is proposed to have parental responsibility to promote such developmental, psychological, emotional and cultural needs;
·The benefits accruing to the child of being able to have a relationship with those who are significant to the child, where it is safe to do so;
·Anything else that is relevant to the particular circumstances of the child.
The relevant explanatory memorandum to the amending legislation indicates that these six matters, which the court must consider, are intended to provide guidance to the court but retain flexibility to adapt to each child’s specific circumstances. The factors are further described as being non-hierarchal but are to be balanced in the light of each individual case.
As with the previous legislation, there is a continued and significant emphasis on protective concerns for each relevant child. In this context, pursuant to the provisions of s 60CC(2A) the court is mandated to consider:
·Any history of family violence, abuse or neglect involving the child or a person caring for the child;
·Any family violence order that applies or has applied to the child or a member of the child’s family.
The relevant explanatory memorandum says as follows in respect of the specific content of the first criteria contained in s 60CC(2)(a):
[I]nclusion of the broad term other harm allows a court-wide discretion to consider the child's particular situation and to draw conclusions of what is in a child's best interests. It will allow, for example, consideration of whether certain arrangements are workable in a family situation where high conflict and poor communication is present (as is often the case in family law matters that proceed to court). This acknowledges the findings by the Australian Psychological Society that continuing inter-parental conflict is one of the strongest single predictors of negative child outcomes…[13]
[13] See Explanatory Memorandum to the Family Law Amendment Bill 2023 at [36].
In my view, the evidence regarding C’s views as to her preferred outcome is unequivocal. She wishes to retain the current status quo, which is long-standing. More significantly, she is exhausted and stressed at being placed in a position where she feels she is at the fulcrum of the parties’ bitter dispute about her. In common parlance, she is fed up with it and wants it done. In my view, it would not be congruent with her best interests for the court to ignore her heartfelt plea.
There is a history of family violence involving C’s care. Although B, in Mr Townsend’s view is now reconciled with him, at an earlier stage, he (B) declined to spend time with his father. The ICL, in her detailed submissions, compiled after having accessed the subpoenaed documents reports as follows:
On review of the documents produced by the NSW Police, it is noted that the Respondent father has multiple COPS entries that relate to antisocial behaviour involving the abuse of alcohol and cannabis. The evidence suggests that the Respondent father has perpetrated family violence against the Applicant mother including sexual assaults, has verbally and physically abused family members, has been charged with drink driving offences (mid range PCA – [early] 2017 and 2001), and perpetrated family violence against his current wife and in the presence of children including [C] and [B] (when [B] was a minor). The Respondent father has been the defendant in a number of ADVO's applied for by the Police for the protection of the Applicant mother and his current wife.
The father’s case is posited on the assumption that it is in C’s best interests to be relocated, against her apparent wishes, to Town GG. Such a significant change of circumstances could only be justified on the most cogent of protective concerns.
Given the concerns raised about Mr Townsend, by the ICL, there do not seem to me to be any realistic possibility that the father will be able to muster such concerns about the mother, if the case is adjourned. In addition, at this stage, his allegations that Ms Green is intent on mounting an occult campaign of alienation are not supported by Ms KK and remain inchoate.
On balance, the mother’s proposal seems to be the one more calculated to ensure the safety of C. In this context, I appreciate each party has asserted that the other has a significant history of disregarding court orders. In this context, I acknowledge there can be no perfect outcome for C.
In my view, even a cursory assessment of C’s developmental and educational needs favour a maintenance of the current status quo, which enable her to remain at her High School in Suburb S and stay in contact with her friends there. Her admittedly brief exposure to JJ School was not positive.
Ms KK has raised concerns about the parental capacity of each party. Each must bear some responsibility for driving the endemic conflict between them, which I am satisfied has been and remains emotionally harmful for C.
At this juncture, there seems little possibility of the parties’ changing their view of the other or a change in the dynamic between them. In all these circumstances, the proposal of adjourning the proceedings in the expectation that something positive will turn up to overcome the parties’ visceral distaste for one another and negate the tyranny of the physical distance between them appears far-fetched.
Rather whether the case is adjourned or not, the fundamental issue for the court will remain the same – is a consideration of C’s best interests, ever likely to justify a decision which will involve her being compelled to relocate to Town GG, away for her longstanding primary carer. Notwithstanding the likely vehemence of Mr Townsend’s assertions that it will, I cannot see it and therefore cannot conceive that further proceedings will serve any useful purpose or will advance C’s best interests.
There comes a point in my many parenting cases, when the court must acknowledge the harm its processes do to children and recognise that not every case will provide a satisfactory outcome. At this point, in exercising its fundamental duty to advance the best interest of the child or children who are the subject of the relevant proceedings, it is incumbent on the court to say enough is enough.
However, I must also be careful not to be unduly dramatic. C will be thirteen soon. She has been described as wise. She knows her father well and loves him. Ms Green’s proposal will not result in the cessation of the relationship between the two or prevent her deriving benefits from engaging with Ms V, of whom she has spoken positively or with W and her other half-siblings on her paternal side.
C will be able to engage with her father during school holidays. In my view, it is not an answer to this fact for Mr Townsend to assert, in the absence of any significant affidavit evidence, that Ms Green will disregard any future orders, particularly given Ms Green’s assertions that he has also failed to return C to her mother’s care in the past.
In addition, Ms Green is open to orders being made that will allow C to communicate liberally with each parent, as she wishes. I presume either through telephone or facetime or some similar electronic medium.
From Ms Green’s perspective, the non-existent nature of the parties’ co-parenting relationship, mired as it is in acrimony and stunted by communication problems, make the sharing of parental responsibility practically unworkable and therefore axiomatically contrary to the child’s best interests.
How responsibility for the parenting of a child is formally conferred upon a person, in proceedings conducted under the Act, is through the making of a parenting order. Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[14]
[14] Family Law Act 1975 (Cth) s 61B.
The court has authority conferred upon it, through the provisions of Part VII of the Act, to alter the conferral of parental responsibility on any parent or parents, which arises by reason of their status as parents of any child concerned. This is done through the mechanism of a parenting order.
A parenting order is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions.[15]
[15] Family Law Act 1975 (Cth) s 64B(2).
Pursuant to s 65C of the Act, a child’s parents; the child; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order. It would seem to me that each party is likely to be interested in all things to do with C’s care, welfare and development.
In addition, as a consequence of the provisions of a 65D, the court is empowered to make whatever parenting order it considers proper. Pursuant to s 64B parental responsibility can be allocated to two or more persons.
Major long-term issues is a concept defined in s 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
It is Ms Green’s position that she should be conferred solely with this responsibility but subject to a requirement that she provide information about any serious medical issue pertaining to C to Mr Townsend and he be authorised to receive scholastic information and, if able, attend concerts and sporting events.
In the current matter, there is no suggestion of any religious differences between the parties or any suggestion of a change of name for C. As a consequence of the decision I have made in respect of the major controversy concerning where C should live, there does not appear to be any issue centring on her education.
There may be issues about overseas travel, in future, which have been highly controversial in the past. In this context, Ms Green is open to an order permitting both parents being able to travel overseas with C but only subject to the proviso that notice be given.
The relevant provisions of the Act encourage parents to consult with one another about such major long-term issues. But, as a result of s 61CA, such consultation is subject to the satisfaction of two provisos – firstly it must be safe for there to be any such consultation and secondly, each parent must have regard to the best interests of the child concerned in doing so.
Section 61DAA of the Act provides the court with an understanding of what joint decision-making about major long-term issues entails:
(1) If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
In a case like the present one, such considerations appear to me to be somewhat aspirational in their nature and so maladapted to high conflict parents, such as Mr Townsend and Ms Green. The legislation does not indicate what should occur if no decision can be made. By necessary implication, in the case of some indissoluble dispute, an application would have to be made to the court.
However, clearly, the viability of the parties’ on-going parenting relationship must be a relevant consideration as to how parental responsibility is conferred between them. In Bartel & Schmucker (No 3), Cronin J, albeit in the context of an earlier iteration of the relevant legislation, said as follows regarding the nature of parental responsibility:
Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.[16]
[16] See Bartel & Schmucker (No 3) [2012] FamCA 1094 at [18] (Cronin J).
Justice Cronin further said of the concept of parental responsibility that it:
[I]s a broad concept as described in s 61B and that task covers many things. Parents are expected jointly to endeavour to promote their children’s development by ensuring they have the greatest potential in adulthood whilst at the same time enjoying the security of childhood they deserve.[17]
[17] See Bartel & Schmucker (No 3) [2012] FamCA 1094 at [21].
In all the circumstances, the orders proposed by Ms Green and the ICL seem to me to achieve the best balance of enabling decisions to be made about C in the major long-term sense, noting such decisions are likely to be relatively few, whilst enabling Mr Townsend to remain involved.
Issues involving overseas travel for a child are inherently complex, particularly in high conflict families. As Cronin J said in Gin & Hing:
Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.[18]
[18] Gin & Hing [2010] FamCA 617.
However, many Australian residents, as does Ms Green, have family overseas and wish their children to maintain ties with relatives in their country of origin. Ms Green’s evidence is that she, B and C have travelled to the UK in the past, including as recently as 2022 and she has canvassed with Mr Townsend the possibility of the children having a holiday in Country MM.
The evidence indicates that Ms Green has lived with C, in the Sydney area, for many years. She has travelled overseas in the past and returned, although I note when B was a child, a Hague Convention application was initiated in the High Court in Britain. In all the circumstances the risk of the mother failing to return the child to her place of habitual residence in Australia appears modest. I will also make the injunction relating to her personal protection which she seeks under s 68B of the Act.
CONCLUSIONS
I have found this to be a troubling and concerning case. I accept that it is an exceptional thing for the court to proceed on an undefended and or summary basis in respect of any child. However a party, no matter how passionate cannot be given carte blanche to ignore court orders. Cases need to be brought to an end. Children benefit from finality.
In my view, the orders proposed by the ICL represent the least detrimental outcome for C at this stage. I agree with her submission and that of the mother that it is in C’s best interests for the proceedings to be brought to a close, albeit from Mr Townsend’s perspective that would be premature and unfair.
In administering its jurisdiction under the Act, the court is called upon to balance many competing considerations. These cannot be twisted to achieve an outcome satisfactory to all concerned. The best outcome for C is the case is finished and she remains living with her mother in a setting familiar to her, whilst attending the school she knows with her own circle of friends; whilst being able to communicate with father regularly and see him for longer periods in school holidays.
I am satisfied given her age and level of development, her relationship with her father will be able to be maintained notwithstanding the vicissitudes of distances, which the father’s actions imposed upon his relationship with C. Bearing in mind, the strength of C’s convictions, no useful purpose will be served by adjourning the case and I will make the orders as set out at the commencement of these reasons for judgment.
POSTSCRIPT
These reasons for judgment were prepared overnight on 26 May, after I had indicated in open court to the parties, including Mr Townsend who appeared on his behalf by telephone, that I would be granting the orally made application for the matter to proceed on an undefended basis but wished a little time to prepare some reasons to explain what I accepted would be a contentious decision.
The next morning (27 May), my chambers received a notification that late the previous afternoon, solicitors had been appointed for Mr Townsend by Legal Aid New South Wales. The solicitor concerned has not filed a notice of address for service and did not make arrangements to attend court by electronic means.
When the matter returned to court Mr Townsend again attended by telephone from his place of work. It was difficult to hear what he had to say because he had not been able to find a quiet place because his supervisor had not come to relieve him as had been previously arranged.
I indicated that notwithstanding the appointment of a lawyer, it was to be regarded as too little too late and I explained again the gist of this judgment, which given the distance between the two homes; C’s strong resistance to change; and the longstanding nature of her care with the mother; created a situation in which he had no reasonable prospect of being successful in his application to change C’s living arrangements.
In these circumstances, perhaps surprisingly and to his credit, Mr Townsend expressed a willingness to discuss the orders proposed by the ICL. His main concern being the sharing of driving responsibilities for holiday time handovers. He said that he too was over the proceedings. If the parties share any sentiment in common, it is this and significantly it is also C’s view.
The parties spent the morning of 27 May discussing the logistical implications of what had been essentially determined by me. To their abiding credit they were able to agree these matters apart from some minor issues, most significantly that of parental responsibility and issues germane to C's passport.
As indicated above, it was my view prior to the discussions which occurred between the parties that the obviously compromised level of communication between the parties rendered any court mandated process of consultation in respect of what were likely to be few major long-term decisions for C likely to be fraught with problems and the potential for conflict. As such, I will resolve this controversy in the manner advocated by the mother and ICL.
The mother wishes the court to make orders pursuant to the provisions of the Australian Passports Act 2005 (Cth) authorising the future issue of a passport for C without the consent of Mr Townsend. Mr Townsend is open to both parties being able to travel externally but wants to be informed of the details of each trip and defer any issues about the issue of a passport until it is necessary for C to have a new passport issued. The ICL supports the father’s position.
I concede that some crisis may arise in C’s overseas family which requires urgent travel at short notice, which may possibly coincide with a period when her passport has expired. It is also the mother’s implicit concern that Mr Townsend may withhold his consent out of malice or for some ulterior purpose.
In this context, it is to be noted that s 11(2) of the Australian Passports Act 2005 (Cth) creates a discretion for the relevant minister to issue a passport for a child, without the consent of a parent, in circumstances in which a child needs to travel urgently because of a family crisis. In addition, although the parties have jointly indicated that they have had enough of litigation, it remains open to each of them to apply to the court, in the event of an impasse regarding the child’s passport. In my view these factors favour the ICL’s position, and I will make the orders proposed by her.
Finally, it is a condition of the ICL’s grant of legal aid in the matter that she is obliged to seek an order for costs against the parties. Ms Shedden has applied a significant discount to her costs. Mr Townsend will consent to his half of the costs sought, which is an amount of $1,850.00.
Ms Green seeks that the court exercise its discretion not to make such an order on the basis of her general impecuniosity. Although legally qualified, her child support income is modest and she has provided the majority of the financial support for both C and B. The evidence available to me indicates that issues to do with child support have been very contentious in the past.
The amount of costs sought is modest. The Legal Aid Commission retains a discretion not to pursue costs and avenues exist to apply for hardship. Ms Shedden, in my view, should be granted the cost orders she seeks.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 27 May 2025
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